EEOC v. AM. FED. OF STATE, COUNTY & MUN. EMP.

• Decision Date: 14 June 1996
• Docket Number: No. 94-CV-1022.,94-CV-1022.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Edward P. Kelly, Plaintiff-intervenor, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO and Security and Law Enforcement Employees Council 82, Defendants, and State of New York and State Department of Correctional Services, Rule 19 Defendants.
• Court: U.S. District Court — Northern District of New York

937 F. Supp. 166

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Edward P. Kelly, Plaintiff-intervenor, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO and Security and Law Enforcement Employees Council 82, Defendants, and State of New York and State Department of Correctional Services, Rule 19 Defendants.

No. 94-CV-1022.

United States District Court, N.D. New York.

June 14, 1996.

E.E.O.C., New York District Office, New York City (James L. Lee, Ann Thacher Anderson, of counsel), National Right to Work Legal Defense Foundation, Inc., Springfield, VA (Bruce N. Cameron, of counsel), Kriss, Kriss & Brignola, Albany, NY (Charles T. Kriss, of counsel), for Edward P. Kelly.

Hite & Casey, P.C., Albany, NY (Lise Gelernter, of counsel), for defendant AFSCME and Council 82.

Dennis C. Vacco, Attorney General, State of N.Y., Department of Law, Albany, NY (Robert A. Siegfried, Assistant Attorney General, of counsel), for State of N.Y., NYS Dept. of Correctional Services.

MEMORANDUM DECISION AND ORDER

CHOLAKIS, District Judge.

Plaintiff-Intervenor Edward P. Kelly (Kelly) is employed by the New York State Department of Correctional Services as a corrections officer at Great Meadow Correctional Facility. Defendant Council 82, a division of defendant American Federation of State, County and Municipal Employees (AFSCME), is the union which represents corrections officers. All corrections officers are required to pay either dues, as members of Council 82, or shop fees, as employees who benefit from the efforts of Council 82 in negotiating contracts for the corrections officers.

Kelly is a Roman Catholic who objects to the positions of Council 82 and AFSCME on the issues of abortion and the death penalty. As such, Kelly requested he be permitted to donate his shop fees to a charitable organization, rather than support an organization with which he is religiously and morally at odds. Council 82 denied this request, and Kelly filed a complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission (EEOC), claiming a violation of his right to freedom of religion. Following a determination in Kelly's favor, EEOC commenced the current lawsuit claiming the failure to accommodate Kelly's religious beliefs violated his rights under 42 U.S.C. § 2000e (Title VII). Kelly sought and was granted intervenor status and also brought a claim under 42 U.S.C. 2000bb, the Religious Freedom Restoration Act (RFRA).

Plaintiffs have now brought motions for summary judgment maintaining that there are no outstanding questions of fact, and they are entitled to judgment in their favor as a matter of law. Plaintiffs contend that the union failed to make a reasonable accommodation of Kelly's religious beliefs, and that this court should issue an order requiring refund of all shop fees paid by Kelly since 1991, as well as an injunction prohibiting the union from failing to make such accommodations in the future.¹

Defendants AFSCME and Council 82 have also filed a motion for summary judgment. Defendants contend that plaintiffs have failed to state a claim under Title VII as the claim set forth in the complaint is really a freedom of association claim and not a freedom of religion claim, negating a cause of action under Title VII or RFRA. Finally defendants contend that even if plaintiffs have stated a claim under Title VII, defendants are entitled to summary judgment as the union has an accommodation policy in place which allows a refund, admittedly minimal, of those portions of the shop fee which support the causes with which Kelly is at odds. Defendants assert this is a reasonable accommodation of Kelly's religious beliefs entitling them to judgment as a matter of law.

The imposition of shop fees upon those employees who do not wish to join the representative union is a permissible labor practice. Accommodation of the constitutional rights of those employees compelled to make these payments is however, also a recognized obligation of the union. Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961).

Although defendants assert there has been no harm inflicted upon plaintiff by requiring payment of his shop fees, "the fact that plaintiff is compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of his constitutional rights." Abood v. Detroit Board of Education, 431 U.S. 209, 234, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). "... The extent of one's disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect." Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 522, 111 S.Ct. 1950, 1960, 114 L.Ed.2d 572 (1991).

Defendants do not challenge the legitimacy of Kelly's beliefs, they assert that the rebate policy is the only accommodation they are required to make. Charitable contributions in lieu of union dues however, have also been found to constitute a reasonable accommodation under Title VII. Intern. Ass'n. of Machinists v. Boeing Co., 833 F.2d 165 (9th Cir.1987).

"The duty to accommodate cannot be defined without reference to the specific religious belief at issue." EEOC v. University of Detroit, 904 F.2d 331, 335 (6th Cir.1990). There are two objections to payment of shop fees raised by Kelly, one of supporting particular issues with which he is religiously at odds, and the other of supporting an organization that champions these issues. Merely reallocating the fees collected would not be a real solution in the current action, as it would only reallocate the utilization of funds by the organization. See, Abood v. Detroit Board of Education, 431 U.S. at 237, n. 35, 97 S.Ct. at 1800-01, n. 35. This would not address Kelly's objection to supporting the organization itself. It is only through redirecting the funds entirely that Kelly's religious objections are fully met.

Although defendants assert allowing a charitable contribution of Kelly's dues would create an undue hardship, "the loss of one...