Equal Emp't Opportunity Comm'n v. N. Mem'l Health Care

• Decision Date: 13 November 2018
• Docket Number: No. 17-2926,17-2926
• Citation: 908 F.3d 1098
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant v. NORTH MEMORIAL HEALTH CARE, Defendant - Appellee General Conference of Seventh-day Adventists, et al., Amici on Behalf of Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

908 F.3d 1098

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant

v. NORTH MEMORIAL HEALTH CARE, Defendant - AppelleeGeneral Conference of Seventh-day Adventists, et al., Amici on Behalf of Appellant

No. 17-2926

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2018

Filed: November 13, 2018

Counsel who filed a brief and presented argument on behalf of the appellant was Julie Loraine Gantz, of Washington, DC.

Counsel who presented argument on behalf of the appellee was Karen Gotsdiner Schanfield, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Karen Gotsdiner Schanfield and Krista Hatcher, of Minneapolis, MN.

The following attorneys appeared on the amicus brief: Todd R. McFarland, Silver Spring, MD. Gene C. Schaerr, S. Kyle Duncan, and Michael T. Worley, Washington, DC. Jason Adkins, St. Paul, MN, Mark B. Stern and Richard T. Foltin, New York, NY, Daniel Mach, Washington, DC, Kimberlee Wood Colby, Springfield, VA, Nathan J. Diament, Washington, DC, Teresa Nelson, St. Paul, MN.

Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.

LOKEN, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) commenced this action alleging that North Memorial Heath Care (North Memorial) violated 42 U.S.C. § 2000e-3(a), Title VII’s provision prohibiting unlawful retaliation, because the effect of withdrawing a conditional offer of employment was to "deprive [Emily] Sure-Ondara of equal employment opportunities ... as an applicant for employment, in retaliation for her request for an accommodation under Title VII." The district court¹ granted North Memorial summary judgment dismissing this claim, concluding that it had not violated § 2000e-3(a) because it did not "discriminate against [Sure-Ondara] because [she] has opposed any practice made an unlawful employment practice." The EEOC appeals, supported by numerous religious organizations and the ACLU as amici curiae . They argue as an issue of first impression that "requests for religious accommodations are protected activity under Title VII’s antiretaliation provision." Reviewing de novo , we conclude the issue cannot be resolved categorically and affirm on the summary judgment record in this case. See Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 546-47 (8th Cir. 2008) (standard of review).

I. Background.

Sure-Ondara is a Seventh Day Adventist and a registered nurse. North Memorial, a hospital healthcare provider based in Robbinsdale, Minnesota, conducts an "Advanced Beginner" residency program to attract hospital nurse applicants by providing training to registered nurses who previously worked in non-hospital settings such as home care. In November 2013, Human Resources Generalist Nick Wombacher emailed Sure-Ondara, encouraging her to apply for the Advanced Beginner Program. Sure-Ondara applied and, after an initial screening, attended an open house hiring event where she was interviewed by the Assistant Nurse Manager for North Memorial’s Collaborative Acute Care for the Elderly (CACE) Unit. Despite learning that a registered nurse working night shifts in the CACE Unit was required to work eight-hour shifts every other weekend -- terms and conditions established by North Memorial’s collective bargaining agreement with the Minnesota Nurses Association -- Sure-Ondara did not disclose that her religion would prevent her from working from sundown on Fridays to sundown on Saturdays.

On November 11, Sure-Ondara was offered and accepted a conditional offer of employment as a Registered Nurse within CACE Hospice and Palliative Care at North Memorial’s Robbinsdale hospital. The confirming letter stated: "You will be scheduled to work 8 Hour Night shifts, including every other weekend." When Sure-Ondara went to the hospital to complete pre-employment paperwork, she disclosed for the first time to a receptionist in the Human Resources Department: "I need to be accommodated because of my religious beliefs, that I need Friday nights off for Sabbath rest. I don’t work Fridays."

Lisa Minshull, an associate HR generalist with North Memorial, followed up to clarify the request for accommodation. In two phone conversations, Sure-Ondara explained that she could not work on Friday nights because she is a Seventh Day Adventist. Minshull advised that the union agreement required work every other weekend and if Sure-Ondara was unable to do so, North Memorial may need to offer the position to another candidate. Sure-Ondara responded that she wanted the job and would "make it work" by finding a substitute for her Friday night shift or come in herself in an emergency or life-or-death situation.

After these communications, Minshull met with three human resources colleagues to discuss Sure-Ondara’s request for religious accommodation. They concluded that North Memorial would rescind the employment offer because it would not be possible for a newly-trained nurse in the Advanced Beginner Program to consistently trade her Friday night shifts, which are unpopular with most nurses, and they were concerned that Sure-Ondara would only show up for what she considered to be emergencies.

On November 20, Wombacher wrote Sure-Ondara advising that North Memorial was unable to grant the accommodation she requested, and asking "if you would like to work with us to identify other positions that may be available at North Memorial." Sure-Ondara responded with an email reiterating her willingness to accept the CACE position without an accommodation. Wombacher responded that Sure-Ondara was told during the interview process that the position required work every other weekend, a requirement of the union contract; that altering her schedule would conflict with the requirement that an Advanced Beginner work with a preceptor; and that "the conflicting statements [she] made regarding ‘making it work’ " led North Memorial to believe she was not willing to work without accommodations. Wombacher again stated that "North Memorial would be pleased to consider you for another position for which you are minimally qualified." Sure-Ondara applied for other positions with North Memorial without success. In February 2014, she was hired by a different hospital into a non-union Home Care and Hospice position that accommodated her religious needs.

In December 2013, Sure-Ondara filed a charge of discrimination with the EEOC alleging inter alia that she was "discriminated against because of my religious beliefs/7th Day Adventist ... and/or in retaliation for requesting religious accommodation in violation of Title VII." In May 2015, the EEOC issued a Letter of Determination that it had "reasonable cause to believe [North Memorial] discriminated against [Sure-Ondara] when [it] retaliated against [her] for requesting a religious accommodation by rescinding the job offer in violation of Title VII." The EEOC filed this enforcement action in September 2015. See § 2000e-5(f), (g). It alleged that North Memorial engaged in unlawful retaliation in violation of 42 U.S.C. § 2000e-3(a) and sought remedies including injunctive relief and back pay, compensatory, and punitive damages for Sure-Ondara.

II. Discussion.

Title VII prohibits what is called intentional "disparate treatment" discrimination by declaring it unlawful for an employer to fail or refuse to hire or to discharge any individual "because of such individual’s ... religion." 42 U.S.C. § 2000e-2(a)(1). The term "religion" is defined to include "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." § 2000e(j). In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the Supreme Court construed these two provisions broadly, subject to the "undue hardship" defense:

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

* * * * *

Title VII does not demand mere neutrality with regard to religious practices -- that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not "to fail or refuse to hire or discharge any individual ... because of such individual’s" "religious observance and practice."

––– U.S. ––––, 135 S.Ct. 2028, 2033-34, 192 L.Ed.2d 35 (2015). This decision makes it clear that Sure-Ondara, as an applicant for employment as a registered nurse at North Memorial, was entitled to reasonable accommodation of her religious practice as a Seventh Day Adventist. Though the events in question predated the Abercrombie & Fitch decision, North Memorial submitted undisputed evidence that its policy and practice at that time was to consider requests for religious accommodations by job applicants on a case-by-case basis, and to grant such requests when the accommodation sought does not pose an undue hardship. Sure-Ondara’s charge of discrimination included a claim of disparate treatment discrimination, but the EEOC’s complaint did not allege a disparate treatment violation of § 2000e-2(a)(1).

Title VII also declares it unlawful for an employer to discriminate against an employee or applicant for employment "because [she] has opposed any practice made an unlawful employment practice by this subchapter," or because she has made a charge of discrimination or participated in any proceeding under this subchapter. § 2000e-3(a). This provision prohibits "employers from retaliating against employees who have acted to vindicate their statutorily protected rights by reporting harassment or discrimination in the workplace." Brannum, 518 F.3d at 547. Its two clauses are referred to as the opposition clause and the participation clause. Id. Only the opposition clause is at issue on this appeal.

To establish a prima facie case of...