Kimberly CRIDER, Plaintiff-Appellant, v. UNIVERSITY OF TENNESSEE, KNOXVILLE, Defendant-Appellee.
No. 11-5511.
United States Court of Appeals, Sixth Circuit.
July 23, 2012.
609
OPINION
DONALD, Circuit Judge.
Plaintiff Kimberly Crider appeals the district court‘s grant of Defendant University of Tennessee, Knoxville‘s (“UTK“) motion for summary judgment in Crider‘s religious discrimination suit brought pursuant to
In May 2008, Crider was hired by UTK as a Programs Abroad Coordinator in the University‘s Programs Abroad Office (“PAO“). Crider‘s job responsibilities included attending conferences on behalf of the department, traveling internationally on “site visits,” and monitoring an emergency cell phone on a rotating basis, including weekends.
The emergency phone was activated in April 2008 as a means by which students studying abroad could reach the PAO in the event of an emergency. Because a student‘s file might need to be accessed on such an occasion, the Coordinator with monitoring duties was required to stay in Knoxville at all times while in possession of the emergency phone. During the time Crider was employed by UTK, the PAO had three Coordinators. The Coordinators shared responsibility for carrying the emergency cell phone on a rotating basis. This responsibility included off-hours and weekends.
Four days after she began working for UTK, Crider informed Dr. Pia Wood, her supervisor, that she was a Seventh Day Adventist and that due to her religious beliefs she was not able to perform work related tasks from sundown on Fridays until sundown on Saturdays. Among the tasks that Crider was unable to perform was monitoring the emergency cell phone on Friday nights and Saturdays. Dr. Wood referred Crider to Dr. Marva Rudolph, Director of UTK‘s Office of Equity and Diversity. On May 20, 2008, Dr. Rudolph instructed Crider to put her request for a religious accommodation in writing, which she did. Dr. Rudolph then contacted Dr. Wood and Alan Chesney, UTK‘s Human Resources Director, stating that she did not think UTK was obligated to accommodate Crider but that they would explore possible accommodations as a proactive matter.
Despite her conversations with Drs. Wood and Rudolph, in June 2008 Crider learned that she was scheduled to carry the emergency phone on an upcoming Saturday. Crider then devised her own ac-
Dr. Wood decided that she would not force the other two Coordinators to accept Crider‘s schedule and met with Crider to discuss other options. Dr. Wood asked Crider if she was willing to carry the emergency phone on the weekends if one of the other Coordinators were out of town, had a family crisis, or in the event of an emergency. Crider maintained that she would not monitor the phone on her Sabbath.1 Crider claims that she had other suggestions for an accommodation, such as having Dr. Wood or other departmental staff monitor the phone until a fourth coordinator was hired2 or having emergency calls forwarded to the campus police. UTK rejected these ideas on the grounds that they were unwilling to pay staff members overtime and that campus police officers were not trained to handle the matters of the PAO. As a result, UTK determined that Crider would not be able to fulfill her job duties, and on June 20, 2008, Crider was terminated.
Crider filed suit alleging religious discrimination in violation of
II.
We review a district court‘s grant of summary judgment de novo. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper where “the pleadings, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Nat‘l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997); see also
To establish a prima facie case of religious discrimination, a plaintiff must show that “(1) [s]he holds a sincere religious belief that conflicts with an employment requirement; (2) [s]he has informed the employer about the conflicts; and (3) [s]he was discharged or disciplined for failing to comply with the conflicting employment requirement.” Smith, 827 F.2d at 1085. Once the Plaintiff has established a prima facie case of discrimination, the burden then shifts to the employer to prove that it cannot reasonably accommodate the employee without incurring undue hardship. Id.
The parties do not dispute the district court‘s finding that Crider established a prima facie case of religious discrimination. The question before the Court is whether there is a genuine issue of material fact as to the reasonableness of the accommodation UTK provided Crider and UTK‘s ability to reasonably accommodate her without undue hardship.
A. Reasonable Accommodation
“The obligation to accommodate includes efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs.” Id. Reasonable accommodations for religious convictions may include unobjectionable shift exchanges, see id. at 1088, or a transfer to another position which preferably does not adversely affect the employee. Draper v. United States Pipe and Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975). While Title VII places the affirmative duty to reasonably accommodate on the employer, employees are expected to “make some effort to cooperate with an employer‘s attempt at accommodation.” Id.
Crider asserts that upon learning of her religious conflict, UTK failed to offer her a reasonable accommodation. Crider claims to have provided UTK with several options for accommodation that did not require her to work on Friday nights or Saturdays but that UTK considered only one of her proposed ideas for a reasonable accommodation: the voluntary shift exchange. Crider maintains that UTK‘s rejection of her proposal and its failure to suggests its own accommodation indicates that the University did not comply with its duty to reasonably accommodate her religious needs. Moreover, Crider claims that UTK frustrated her efforts to obtain a reasonable accommodation. Crider also argues that not only did UTK not promote an atmosphere where her ideas for a reasonable accommodation would be “favorably regarded,”3 it “affirmatively discouraged” her proposal for a voluntary shift exchange.
In response, UTK insists that it tried to reasonably accommodate her when it asked Crider if she could be flexible and agree to carry the phone on the weekends in an emergency situation or when the other two coordinators were out of town. UTK found Crider to be inflexible, uncooperative, and unwilling to strike a reason-
UTK and the district court imply that it is Crider who has the duty to accommodate UTK‘s needs and that ultimately she is the one being unreasonable. Aptly stated by the Third Circuit, a Saturday Sabbatarian‘s request for every Saturday off of work due to their religious needs is not per se unreasonable and “[t]o interpret Title VIII in this fashion would effectively remove from the statute‘s protection all employees who subscribe to religions with strict prohibitions against Sabbath labor.” Protos v. Volkswagen of America, Inc., 797 F.2d 129, 134 (3d Cir. 1986) (disagreeing with the Fourth Circuit‘s holding in Jordan v. North Carolina Nat‘l Bank, 565 F.2d 72 (4th Cir. 1977), that demand for every Saturday off “was so unlimited and absolute in scope . . . that [it] speaks its own unreasonableness and is thus beyond accommodation“).
Given the foregoing, it is debatable whether UTK fulfilled its duty to reasonably accommodate Crider, and thus we turn to whether UTK is excused from this duty because providing a reasonable accommodation would create an undue hardship.
B. Undue Hardship
UTK insists that requiring its employees to work Saturday shifts every other weekend would have created an undue hardship for Crider‘s former co-workers. As support, UTK cites Meador‘s threat to quit her job as a Coordinator if forced to carry the emergency phone every other weekend. Crider argues that her former co-workers’ discontent regarding adoption of the voluntary shift exchange amounts to mere “grumbling” and is not enough to establish that UTK‘s business will suffer an undue hardship.
This Court has held that “objections and complaints of fellow employees, in and of themselves, do not constitute undue hardship in the conduct of an employer‘s business,” noting that “undue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.” Draper, 527 F.2d at 520 (internal quotation marks omitted). UTK, however, asserts that the Supreme Court in Trans World Airlines, Inc. v. Hardison, et al., 432 U.S. 63 (1977), held that an accommodation causes an undue hardship where the employee‘s co-workers will suffer an imposition and that this holding effectively overruled our decision in Draper.
The district court heavily relied on Hardison in determining that UTK would incur an undue hardship if it were required to force Rost and Meador to resume responsibility of carrying the emergency phone every other weekend. In reaching this determination, the district court emphasized Hardison‘s rejection of the notion that an employer may deprive one employee of their shift choice in order to allow another employee to observe their Sabbath. Hardison held that “[t]he repeated,
Ultimately, Hardison hinges on the voluntary nature of a shift exchange: Had one of Hardison‘s co-workers been willing to forego his seniority privileges and switch shifts, there would have been no issue for the Court to decide. As it was, Hardison was not able to find a volunteer to switch shifts, and thus the Court was tasked with deciding how far TWA was required to go to reasonably accommodate Hardison without undue hardship. The Court found that requiring TWA to breach the contractual rights of its employees by abandoning the seniority system established by a collective bargaining agreement, or to replace Hardison with employees who required premium wages, went too far and created an undue hardship on TWA. Id. at 80, 84. As the Court explained, to require either scenario would be “[t]o require TWA to bear a more than a de minimis cost in order to give Hardison Saturday‘s off.” Id. at 84. Title VII clearly does not require this result.
UTK seems to twist the district court‘s finding and the Hardison decision by insisting that a significant effect on a coworker will suffice to establish an undue hardship. This is an inaccurate reading of the holding in Hardison. Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer‘s business.”
The Hardison Court was unwilling to deprive employees of their contractual rights under the bargained for seniority system. Hardison, 432 U.S. at 80-81. The Court reasoned that Title VII itself provides special treatment for seniority systems, see
Appellee labels our decision in Draper as “outdated.” The Fifth Circuit seems to suggest the same in stating, “Draper was decided prior to Hardison, and thus the continuing validity of any implication in Draper that the employer may be required
According to Draper, “[i]t is conceivable that employee morale problems could become so acute that they would constitute undue hardship” and that such discontent can lead to “chaotic personnel problems.” Draper, 527 F.2d at 521. Thus, contrary to UTK‘s assertions, Hardison and Draper are not in conflict. Both require the employer to show an undue hardship on its business, but also recognize that an accommodation‘s effect on a co-worker may lead to an undue hardship on the employer.
Meador‘s threat to quit her job as a Coordinator if forced to carry the emergency phone every other weekend does present a colorable claim of undue hardship. If Meador were to leave the department, there would only be one Coordinator available, Rost, to work on Friday nights and Saturdays. Given that Rost has already rejected the idea of working every other weekend, if he had assumed sole responsibility for the emergency phone this would have potentially caused a “chaotic personnel problem.” And as we stated in Draper, personnel problems can lead to undue hardship on an employer. The University, however, has provided nothing to show that Meador‘s threat was more than mere “grumbling.” As such, Crider has raised a disputed issue and summary judgment was premature.
UTK also insists that monitoring the emergency phone was not the only duty that Crider would have been unable to perform in light of her religious beliefs. UTK argues that Crider would not have been able to properly function as a Programs Abroad Coordinator because she would have been unable to attend campus outreach programs, activities at various conferences, and “site visits” that often have events on Friday nights and Saturdays. UTK submits that this would require it to send an additional Coordinator with Crider on foreign “site visits,” thereby creating more than a de minimis cost to the school.
UTK determined that “site visits” were an essential job function of a Programs Abroad Coordinator and that it would suffer hardship if Crider remained in the position. Crider did not have the opportunity to participate in a “site visit” prior to her termination, so an accommodation for that situation was not yet necessary, but an employer may show undue hardship before an accommodation has been put into place. See Draper, 527 F.2d at 520; Virts v. Consol. Freightways Corp., 285 F.3d 508, 519 (6th Cir. 2002). However, according to Ms. Meador‘s deposition testimony, it is possible to “opt-out” of sessions and receptions at conferences and it is possible that events on “site visits” will not be scheduled on Friday nights and Saturdays.
Because a genuine issue of material fact exists as to the possible hardship UTK might suffer by accommodating Crider‘s religious beliefs, summary judgment was inappropriate.
C. Frustration of Accommodation
Summary judgment is inappropriate where there is a question as to whether the employer inhibited, frustrated, or impeded volunteers from swapping shifts. McGuire, 956 F.2d at 610. Crider points to Meador‘s deposition testimony where Meador indicated that after Dr. Wood spoke with Dr. Rudolph and Chesney about the shift exchange, Dr. Wood told Meador and Rost not to do anything different at work, despite Crider‘s request
III.
We conclude, therefore, that the existence of genuine issues of material fact as to both the reasonableness of the accommodation UTK provided Crider and UTK‘s ability to reasonably accommodate her without undue hardship preclude summary judgment. Accordingly, we reverse and remand.
McKEAGUE, Circuit Judge, dissenting.
I would affirm the district court because, upon viewing the record in the light most favorable to Crider, the University‘s Programs Abroad Office was entitled to summary judgment as a matter of law. Accordingly, I respectfully dissent.
A thorough consideration of the undisputed record reveals that the University is entitled to summary judgement. The Programs Abroad Office at the University is charged with overseeing nearly 1,000 students studying abroad in approximately 35 countries. The supervisor of the Programs Abroad Office, Dr. Wood, was hired in 2007 shortly after a student studying abroad in France unexpectedly died. Recognizing that the trauma of this tragedy was amplified by faculty and University confusion over how to best react in a crisis situation, Dr. Wood implemented new emergency procedures for students and faculty abroad.
The centerpiece of the new emergency procedures was an emergency cell phone (the “emergency phone“), which created a single point of contact in an emergency. Dr. Wood assigned responsibility for the emergency phone to the Programs Abroad Office‘s Coordinators after determining they were the only staff members with sufficient expertise and training. At the time Dr. Wood instituted the emergency phone program in March 2008, the Programs Abroad Office had three Coordinator positions. Meador and Rost held two of the positions and the third job remained vacant until Crider was hired in May 2008.
Dr. Wood made clear that her “assumption was that the [Programs Abroad Office] would be staffed with three exempt coordinators.” Indeed, she believed that “having only two Coordinators carrying the phone on an ongoing basis constituted an unacceptable risk to our students and faculty.” Dr. Wood anticipated that emergencies may require more than one Coordinator to resolve, thereby creating a precarious situation given the fact that the Coordinators travel frequently for work and “when one was traveling, the other had responsibility for the phone with no backup in the event of a personal emergency or family crisis.” Crider does not July 19, 2012 dispute these facts.
Dr. Wood also “recognized that carrying the phone was an onerous burden to assume so frequently. Coordinators must keep the phones with them at all times, including weekends, and must remain in an environment where they can hear and respond immediately to a call.” Coordinators are required to monitor the phone for seven day shifts from Monday to Monday. Moreover, Coordinators are required to stay in Knoxville while they are carrying the phone so they could access files in the Programs Abroad Office in the event of an emergency. The demands of the emer-
Given both the safety and the staffing issues resulting from having only two Coordinators to manage the emergency phone, the Programs Abroad Office continued to search for a third Coordinator. When Crider was interviewed, Dr. Wood told her that weekend work was required. At no point in the interview did Crider indicate that she would be unable to work on the weekends. Crider was offered the position and she accepted. On her fourth day as Coordinator, Crider informed the Programs Abroad Office that she was a Seventh-Day Adventist and that her religious beliefs precluded her from working on her Sabbath. Crider refused to perform any work, including participating in the emergency phone rotation, from sundown Friday to sundown Saturday.
For nearly one month both the Programs Abroad Office and the University explored possible means to accommodate Crider. Crider proposed an alternate emergency phone schedule that shifted her Saturday responsibilities to Meador and Rost. Dr. Wood met with Meador and Crost to ask if they were willing to accept Crider‘s proposal, and both Meador and Crost stated that they would not voluntarily agree to adjust shifts because it would permanently and unacceptably compromise their weekends. Dr. Wood also met with Crider and posed at least three scenarios in an attempt to accommodate her: (1) Dr. Wood asked Crider if she would be willing to carry the phone if the other Coordinators were out of town; (2) Dr. Wood asked the plaintiff if she would carry the phone if one Coordinator was out of town and the other Coordinator had a family crisis; and (3) Dr. Wood asked Crider if she would be willing to assist the other Coordinators in an emergency situation. Crider refused all three proposals. After meeting with Crider to fully explore the parameters of her religious limitations, Dr. Wood determined that Crider could not be accommodated. During this entire period, Meador and Rost continued to monitor the phone on alternating weekends just as they had prior to Crider‘s employment.
Under these circumstances, accommodating Crider‘s religious needs was an undue hardship. Title VII only requires an employer to offer employees a “reasonable accommodation” if doing so would not create an undue hardship. See
There is no evidence in the record that Crider‘s termination was anything other than a neutral employment decision based on her inability to perform the core requirements of her position. The emergency phone rotation was instituted well before Crider was hired and the record reveals that the Programs Abroad Office viewed deviations from this program as a
The majority wrongly attributes the Programs Abroad Office‘s inability to accommodate Crider to employee “grumbling.” The small number of qualified staff in the Programs Abroad Office meant that accommodating Crider‘s religious practices would have gone well beyond the “mere possibility” of adversely impacting Meador and Rost. The burden on them was not a metaphysical concern with uncertain consequences: Meador and Crost had already experienced the burdens of managing the emergency phone every other weekend for a sustained period of time and they did not want that arrangement to become permanent. As Meador and Rost emphasized, this would significantly impact their personal lives. This is legally sufficient to constitute an undue burden under Title VII. See Virts, 285 F.3d at 520-21.
Furthermore, the majority‘s approach toward Meador and Rost is disconcerting because “Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities.” Hardison, 432 U.S. at 81. If the Programs Abroad Office had forced Crider‘s coworkers to involuntarily assume part of Crider‘s emergency phone responsibilities because of Crider‘s religious beliefs, the effect would be discrimination against Meador and Rost in violation of Title VII. See id.
Finally, the majority erroneously concludes that the record contains an issue of material fact as to whether the Programs Abroad Office frustrated Crider‘s request for accommodation. The majority cites to McGuire for the proposition that “[s]ummary judgment is inappropriate when there is a question as to whether the employer inhibited, frustrated or impeded volunteers from swapping shifts.” See McGuire v. Gen. Motors Corp., 956 F.2d 607 (6th Cir. 1992). In McGuire, however, the employee started a voluntary shift-swap scheme that “had been operating with at least some degree of success” until the employer intervened and made it “virtually impossible” for the scheme to continue. Id. at 610.
That is not the case here. First, there was no preexisting employee-generated shift-swap scheme at the Programs Abroad Office. Instead, Meador and Rost were never amenable to voluntarily giving up at least part of every other weekend—they both told Dr. Wood they were unwilling to accept such an arrangement, and Meador even threatened to quit. Second, there is no evidence that the Programs Abroad Office rendered it “virtually impossible” for Crider to obtain accommodation from her coworkers. For this point, the majority relies solely on Dr. Wood‘s instruction to Meador and Rost to not do anything different at work. Yet the record does not show that this instruction contributed to Meador‘s and Rost‘s decision to not accept Crider‘s proposed shift change (or even that it occurred prior to them informing Dr. Wood of their decision). Instead, it shows that their unwillingness to permanently sacrifice their weekends was already independently established.
In any event, any comment made by Dr. Wood was irrelevant since it was unreasonable for the Programs Abroad Office to
The record, viewed in a light most favorable to Crider, reveals that the University met its burden. Not only did the University offer Crider multiple accommodations, but the University also demonstrated that Crider‘s recalcitrance would both create an undue burden for her co-workers and threaten the ability of the Program Abroad Office to handle an emergency. These are not in dispute. The record also reflects that Crider was uncooperative at every turn, thus failing to satisfy her burden under Title VII. See Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (noting that an employee “must make some effort to cooperate with an employer‘s attempt at accommodation).” Accordingly, the University met its Title VII burden and summary judgment is proper.
For the foregoing reasons, I respectfully dissent.