Heller v. EBB Auto Co.

• Decision Date: 05 November 1993
• Docket Number: No. 92-35277,92-35277
• Citation: 8 F.3d 1433
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 505, 63 Empl. Prac. Dec. P 42,663 Jerrold S. HELLER, Plaintiff-Appellant, v. EBB AUTO CO., dba Ron Tonkin Mitsubishi, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1433

8 F.3d 1433

63 Fair Empl.Prac.Cas. (BNA) 505,

63 Empl. Prac. Dec. P 42,663

Jerrold S. HELLER, Plaintiff-Appellant, v. EBB AUTO CO., dba Ron Tonkin Mitsubishi, Defendant-Appellee.

No. 92-35277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 1993.

Decided Nov. 5, 1993.

William F. Hoelscher, Hoelscher & Associates, Tigard, OR, for plaintiff-appellant.

Jacob Tanzer and Bruce W. DeKock, Ball, Janik & Novack, Portland, OR, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon. ^*

Before: BROWNING, SCHROEDER, and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Jerrold S. Heller appeals a district court judgment and a jury verdict in favor of EBB Auto Company in Heller's action alleging that EBB unlawfully terminated him in violation of Title VII, its Oregon statutory counterpart, and Oregon common law. Because we find that EBB failed to initiate any effort to reasonably accommodate Heller's religious practice of attending the ceremony in which his wife and children were converted to Judaism, we reverse.

I.

In late 1984, EBB Auto Company hired Jerrold S. Heller, who is Jewish, as a used-car salesperson. At that time, Heller's wife, Katherine, was studying to convert from Catholicism to Judaism in anticipation of their oldest son's bar mitzvah. Because Jewish law mandates that children take their mother's religion, the bar mitzvah could not take place until Katherine's conversion. ¹

Katherine completed her course of study in early May 1985. On Saturday, May 10, EBB notified Heller that due to an upcoming "tent sale" all vacations and leaves were cancelled for the weekend of May 17-19. On Tuesday, May 14, Rabbi Yonah Geller telephoned Heller at work and told him that the conversion ceremony for Katherine and her study group could take place on the morning of either the upcoming Friday (May 17) or Sunday (May 19). Because he assumed that the dates could not be changed, Heller never attempted to reschedule the ceremony.

Heller telephoned his immediate supervisor, Collyer Young, explained his situation, and asked for two hours off on either Friday or Sunday morning. Young asked if there was any way to hold the ceremony at another time. Upon Heller's negative response, Young gave him permission to miss a Friday morning sales meeting. Heller then telephoned Geller and informed the rabbi that he would be able to attend a ceremony on Friday morning. Geller subsequently informed the other members of Katherine's study group and made arrangements for the ceremony.

The next day (Wednesday, May 15), Young's superior, Greg Bowman, learned of Heller's leave of absence and countermanded it. Bowman instructed Young to inform Heller that he was required to attend the meeting and that, if he failed to do so, he would be fired. When Heller insisted on attending the ceremony, Young fired him.

That night, Young telephoned Heller's home, spoke to Katherine, and left word that he wanted to discuss the matter. The following day (Thursday, May 16), Heller went to EBB to pick up his final paycheck and Young attempted to talk things over with him. Heller refused and the parties had no further contact. Heller attended the conversion ceremony on Friday, May 17.

Heller filed suit claiming that his dismissal violated Title VII and its Oregon statutory counterpart and constituted wrongful termination under Oregon common law. The district court granted summary judgment for EBB on the basis that an earlier denial of Heller's Oregon unemployment compensation claim was res judicata. A Ninth Circuit panel reversed and remanded the case to the district court. Heller's statutory claims were tried by the court, which granted judgment for EBB, and the wrongful termination claim was tried by a jury, which rendered a verdict for EBB. Heller appeals the judgment and verdict.

II.

Title VII makes it an unlawful employment practice for an employer "to discharge any individual ... because of such individual's ... religion." 42 U.S.C. § 2000e-2(a)(1) (1988). Title VII further provides:

The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

Id. § 2000e(j). "The ... effect of this definition [i]s to make it an unlawful employment practice ... for an employer not to make reasonable accommodations, short of undue hardship, for the religious practice of his employees...." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2271, 53 L.Ed.2d 113 (1976). ²

We analyze Title VII religious discrimination claims under a two-part framework. First, the employee must establish a prima facie case by proving that (1) he had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) he informed his employer of the belief and conflict; and (3) the employer threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements. The prima facie case does not include a showing that the employee made any efforts to compromise his or her religious beliefs or practices before seeking an accommodation from the employer. See, e.g., Proctor v. Consolidated Freightways Corp., 795 F.2d 1472, 1475 (9th Cir.1986); Anderson v. General Dynamics, 589 F.2d 397, 401 n. 3 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979). Second, if the employee proves a prima facie case, the employer must establish that it initiated good faith efforts to accommodate the employee's religious practices. See, e.g., EEOC v. Hacienda Hotel, 881 F.2d 1504, 1512 (9th Cir.1989); Anderson, 589 F.2d at 401.

The district court concluded that Heller failed to establish a prima facie case and that EBB had attempted in good faith to accommodate Heller's religious practices. We disagree.

A.

Because it involves the application of a rule of law to established facts, we review de novo the issue of whether Heller established a prima facie Title VII case. See, e.g., Boone v. United States, 944 F.2d 1489, 1492 (9th Cir.1991).

EBB first suggests that the conversion ceremony is not a religious practice within the protection of Title VII and cites Wessling v. Kroger Co., 554 F.Supp. 548 (E.D.Mich.1982), as support. In Wessling, the district court held that an employee's voluntary participation in preparations for a Christmas play at her church was not within the scope of Title VII. The court noted that the employee's early arrival to decorate and receive children was essentially "social in nature" and found that her participation "was family oriented, a family obligation, not a religious obligation." Id. at 552.

EBB's reliance on Wessling is misplaced. Title VII protects more than the observance of Sabbath or practices specifically mandated by an employee's religion:

[T]he very words of the statute ("all aspects of religious observance and practice....") leave little room for such a limited interpretation.... [T]o restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, ... but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion.... [S]uch a judicial determination [would] be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S. 67, 70 [73 S.Ct. 526, 527, 97 L.Ed. 828] (1953), "[I]t is no business of courts to say ... what is a religious practice or activity."

Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir.1978) (Title VII protects an employee's participation in regularly-scheduled Bible classes) (footnote omitted). Accord McDaniel v. Essex Int'l, Inc., 571 F.2d 338, 342 (6th Cir.1978) (Title VII "applies to all religious observances and is not limited to claims of discrimination based on requirements of Sabbath work"); Cooper v. General Dynamics, 533 F.2d 163, 168 (5th Cir.1976) ("The language chosen is broad--broader can hardly be imagined--and entirely extravagant to a mere concern for Sabbatarianism or any other particular doctrine or observance"), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1091 (1977); Weitkenaut v. Goodyear Tire & Rubber Co., 381 F.Supp. 1284, 1288-89 (D.Vt.1974) (Title VII protects a minister's attendance at monthly church organizational meetings).

Under this broad framework, Title VII's protections clearly encompass Heller's participation in the conversion ceremony. Geller testified that the ceremony, and the role of the father and husband in it, are part of the basic teachings of Judaism. By sacrificing his job to attend, Heller demonstrated that he attached the utmost religious significance to the ceremony. Either fact is sufficient to invoke the statute.

EBB next asserts that the ceremony did not conflict with Heller's employment duties because Heller could have rescheduled it to a date when he was not working. ³ We disagree.

An inflexible duty to reschedule would impose too great a burden on employees who desire to attend religious ceremonies for which they might be able to change the date or time, such as baptisms, confirmations, or weddings. Although Heller never requested a change of date for the ceremony, his lack of action did not stem from a disregard for his employment duties. Rather, he thought the dates were fixed because the ceremony involved other converts and because his son's bar mitzvah was less than a month away. Given this good faith and the fact that Geller acted in reliance upon Heller's assured availability after Young gave him permission to attend, there was a conflict between Heller's religious practices...