Brown v. General Motors Corp., 78-1834

• Decision Date: 20 August 1979
• Docket Number: No. 78-1834,78-1834
• Citation: 601 F.2d 956
• Parties: 20 Fair Empl.Prac.Cas. 94, 20 Empl. Prac. Dec. P 30,048 Lehman BROWN, Appellant, v. GENERAL MOTORS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 956

601 F.2d 956

20 Fair Empl.Prac.Cas. 94, 20 Empl. Prac.

Dec. P 30,048

Lehman BROWN, Appellant, v. GENERAL MOTORS CORPORATION, Appellee.

No. 78-1834.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1979.

Decided June 22, 1979.

Rehearing and Rehearing En Banc Denied Aug. 20, 1979.

William H. Pickett, Kansas City, Mo., argued and on brief for appellant.

John J. Yates (argued), Gage & Tucker, Kansas City, Mo. and Paul Scott Kelly, Jr., Kansas City, Mo., on brief for appellee.

Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Lutz A. Prager and Paul E. Mirengoff, Attys., E.E.O.C., Washington, D.C., on brief for amicus curiae, E.E.O.C.

Before LAY, HEANEY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

Lehman Brown appeals from the judgment entered in an action brought against his former employer, General Motors, under Title VII of the Civil Rights Act of 1964 for religious discrimination in violation of Section 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Brown asserts that his discharge violated the Act's requirement that employers reasonably accommodate employee religious beliefs. ¹ The trial court, the Honorable Russell G. Clark, found that accommodation of Brown's religious belief would result in more than de minimus cost to his employer under the principles stated by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Accordingly, the court entered judgment for defendant General Motors. On the basis of the record presented we respectfully disagree and reverse and remand the case to the district court for further proceedings.

Brown began work on General Motors' assembly line in Kansas City on March 26, 1964. His job entailed selecting the proper roof to be placed on a car body and assisting in its installation. In September 1966 Brown transferred to the daytime shift. Shortly after going on the first shift Brown joined the Worldwide Church of God. One of the tenets of this religion is that its members not engage in employment during the Sabbath, which is defined as the period from sunset on Friday until sunset on Saturday. While Brown was on the day shift his religious observance of the Sabbath did not interfere with his employment with General Motors. In March 1970 there was a workforce reduction on the assembly line due to economic conditions. Brown's seniority was such that he could no longer maintain his position on the first shift and in May 1970 he was transferred back to the second shift. This required him to work daily from approximately 4:00 P.M. until 12:30 A.M. From May 25 until August 19, when he was terminated for refusing to work scheduled plant hours, Brown failed to work after sunset on each Friday. He thereafter brought suit claiming his discharge by General Motors violated § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1).

Section 703(a)(1), as recently interpreted by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), requires an employer to accommodate the religious observances of its employees unless such accommodation would contravene the provisions of a valid collective bargaining agreement or would cause the employer undue hardship. The only act of accommodation suggested by the parties is that Brown be allowed to leave work every Friday at sunset. ² Since neither party contends that such an arrangement would contravene the collective bargaining agreement, the only remaining inquiry is whether the cost of the proposed accommodation would be more than de minimus. See Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84, 97 S.Ct. 2264. In addressing this issue, the district court examined the effects of Brown's absence on Friday evening and made several findings of fact which are not disputed on appeal. Brown did not receive any pay for the time missed. A replacement worker filled in for him on the shift during the hours he missed. The district court found that General Motors employed "extra board men" who were at all times available to replace unscheduled absences of regular employees. The district court also found that "there were additional personnel in excess of the authorized work force in the body shop." Thus, the court found

(s)ufficient numbers of substantially qualified workers were available without any additional cost in wages or overtime to the defendant to take over the plaintiff's job after sundown on Fridays between May 29 and August 19, 1970. . . .

GM did not incur any additional costs in the form of overtime or wages due to the plaintiff's absence on Friday nights due to the "filling in" by the available personnel. The plaintiff was not paid for the hours not worked. Mr. Carr testified that plaintiff's absence was a "drop in the bucket" in terms of lost efficiency on the assembly line on each of the Friday nights that he was absent throughout the summer months.

Nonetheless the district court denied relief. First the court noted that "(t)here was testimony to the effect that . . . to guarantee that someone would be available with regularity would entail the hiring of an additional worker, the cost of which would be more than de minimus." ³ The court further concluded that

(a)lthough the effect of Brown's absence was like a "mere drop in the bucket" in terms of efficiency on any one night, the cumulative effect of numerous individuals who would desire to also be excused from their forty hour work week for various religious And personal reasons would create an "undue hardship" consistent with the test set forth in Hardison.

(Emphasis added.)

Finally the district court concluded that General Motors was not required to give Brown Friday evenings off because such an accommodation would actually result in preferential discrimination based on one individual's religious practices.

We disagree with the court's reasoning and hold that the undisputed proof and finding of the trial court established that General Motors incurred no actual cost in accommodation of Brown's request before his actual discharge.

In order to establish a prima facie case of religious discrimination under §§ 2000e-2(a)(1) & (j), a plaintiff must plead and prove that (1) he has a bona fide belief that compliance with an employment requirement is contrary to his religious faith; (2) he informed his employer about the conflict; ⁴ and (3) he was discharged because of his refusal to comply with the employment requirement. See Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir. 1978); Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 405 (9th Cir. 1978); Redond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978). The facts found by the district court, which are not disputed by the parties, clearly establish a prima facie case of religious discrimination. The fundamental question as posed by Hardison, therefore, is whether the proposed accommodation requires General Motors to bear an undue hardship in that more than de minimus costs would result therefrom. 432 U.S. at 74-75, 84, 97 S.Ct. 2264.

General Motors seeks to buttress the district court's conclusion that accommodating Brown would "theoretically" require General Motors to hire an additional full-time employee by citing evidence that there had previously been increased absenteeism on the second shift during 1970 on Fridays. General Motors argues that Before Brown's situation arose absenteeism had been so high on Fridays that production had been halted in several departments on several different Fridays in order to provide employees with their 23 minute break periods; that during this time General Motors was forced to utilize every available employee.

This testimony fails to rebut the undisputed finding that Brown's absenteeism on the second shift at no time caused General Motors hardship. The general cumulative effect of prior plant problems, which evidently were solved before May 1970, or the projected "theoretical" future effects cannot outweigh the undisputed fact that no monetary costs and de minimus efficiency problems were actually incurred during the three month period in which Brown was accommodated.

As stated by the Sixth Circuit in Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975):

(w)e are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that has never been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.

Accord, Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 406-07 (9th Cir. 1978).

If an employer stands on weak ground when advancing hypothetical hardships in a factual vacuum, then surely his footing is even more precarious when the proposed accommodation has been tried and the postulated hardship did not arise. ⁵

The second basis asserted by the district court in rejecting Brown's claim rests on the alleged cumulative effect that will arise when large numbers of employees want Friday nights off "for various religious and personal reasons."

Initially we note that § 2000e-2(a)(1) does not require an employer to reasonably accommodate the purely personal preferences of its employees. Accordingly, the costs which GM would bear resulting from accommodating Brown do not include excusing vast numbers of employees who wish to have Friday night off for secular reasons.

With regard to the possibility that numerous individuals sharing Brown's religious beliefs would desire to be excused and therefore place some actual burden constituting an undue hardship on GM, ⁶ the record reflects that only four other Sabbatarians were working on the second shift out of a total work force of 1200-1600. GM made no attempt to show whether accommodation of these employees would give rise to any costs or what the actual aggregated impact of...