Eversley v. MBank Dallas

• Decision Date: 03 March 1988
• Docket Number: No. 87-1796,87-1796
• Parties: 46 Fair Empl.Prac.Cas. 1126, 46 Empl. Prac. Dec. P 37,940 Wilton M. EVERSLEY, Plaintiff-Appellant, v. MBANK DALLAS, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 172

843 F.2d 172

46 Fair Empl.Prac.Cas. 1126,

46 Empl. Prac. Dec. P 37,940

Wilton M. EVERSLEY, Plaintiff-Appellant, v. MBANK DALLAS, Defendant-Appellee.

No. 87-1796

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 3, 1988.

Frank P. Hernandez, Dallas, Tex., for plaintiff-appellant.

William C. Strock, John V. Jansonius, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Wilton M. Eversley (Eversley) brought this action under Title VII, 42 U.S.C. Sec. 2000e et seq., against defendant-appellee MBank Dallas (MBank) claiming religious discrimination. The district court rendered summary judgment for MBank ¹ and Eversley brings this appeal. We affirm.

After the end of the discovery period, which had lasted eight months or more, MBank moved for summary judgment, supported by affidavits and deposition excerpts as well as a list of undisputed facts and a supporting brief. Notwithstanding that local rules called for a response within twenty days, Eversley filed absolutely no response whatever to MBank's motion, nor did he seek an extension of time within which to do so. Approximately seven weeks after MBank's motion was filed, the district court entered its memorandum opinion granting the motion. Eversley filed no motion for reconsideration, and did not otherwise make any attempt in the court below to either cause it to change its ruling or to in any way oppose the granting of the motion. Neither on appeal nor in the court below has Eversley ever offered any explanation for his failure to oppose the motion for summary judgment, or to seek reconsideration; nor has he ever asserted that he did not have an adequate opportunity for discovery or the like. Eversley did, however, file a timely notice of appeal. In ruling on MBank's motion, the district court did not grant it because Eversley had in any sense "defaulted." See Hibernia National Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). Rather, the district court accepted as undisputed the facts so listed in support of MBank's motion for summary judgment. In our opinion, the district court acted properly in doing so and, since Eversley made no opposition to the motion, the court did not err in granting the motion as MBank's submittals made a prima facie showing of its entitlement to judgment. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Viewed in this light, we conclude that summary judgment for MBank was proper.

Eversley's religion dictated that he not work from sundown on Friday to sundown on Saturday, his Sabbath. He was hired by MBank in April or May 1978 as a control machine operator in MBank's Transit Department, working the second shift which was from 4:00 p.m. until midnight, Monday through Friday. However, as Eversley had informed MBank that his religion prevented him from working between sundown on Friday and sundown on Saturday, he was allowed to work a split shift, working Monday through Thursday from 4:00 p.m. until midnight, and from 11:00 a.m. on Sunday until completion of work. This arrangement continued until 1985, when MBank, due to an environment of increased competition and declining profit, retained an outside consulting firm to evaluate its operations and identify methods to increase efficiency and enhance performance. Among other things, the consultant recommended termination of the split in the second shift in the Transit Department, recommending instead that the second shift complete its work by midnight on Friday. Following the consultant's recommendation meant that Eversley, if he were to remain in his position on the second shift, would have to work Monday through Friday from 4:00 p.m. until midnight. We will not further delve into the details of the consultant's recommendation or the reasons supporting it, because Eversley does not contend that the recommendation was other than bona fide and reasonable, or that it would not be an undue hardship on MBank to continue the split in the second shift.

In mid-June 1985, Eversley's supervisor notified him that he would have to work Monday through Friday from 4:00 p.m. until midnight and that this change would go into effect, as MBank had planned, within three weeks. However, MBank postponed implementation of this change until mid-October 1985 in an effort to work things out for Eversley. As stated in MBank's list of uncontested facts filed below, "After the decision to adjust hours of the second shift control machine operators, Mr. Bateman [the MBank employee who was Eversley's supervisor] checked with the first shift Transit Department supervisor to see if the two first shift control machine operators would switch shifts with Mr. Eversley. They refused to do so." Further, Eversley was given the assistance of MBank's Human Resources Department to find alternative employment within the bank. MBank maintained a bulletin board on which job openings were posted and Eversley was advised to check it periodically during this period. Several openings were posted during this time, but none were of interest to Eversley. He asserts on appeal that all were at lower pay scales. He was informed during this time of one opening in the Lock Box Department, but he decided that the position was not satisfactory. He asserts that it would have involved a twenty percent pay cut. Eversley expressed interest in another position which was open, but he did not possess the minimum required qualifications for it, and hence was unable to avail himself of that position. Other applicants for that job during the same time were also turned down for similar lack of qualifications. Ultimately, on October 18, 1985, Eversley's supervisor informed him that the split in the second shift would be terminated, and a week later Eversley resigned.

Under Title VII, as amended in 1972, a covered employer has the "statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977). Eversley does not contend that there was any intent by MBank to discriminate against him on account of his religious beliefs, or that any animosity to those beliefs was involved. ² Moreover, as heretofore noted, he does not contend that it would not have been an undue hardship on MBank to continue the split in the second shift. Nor does Eversley contend that MBank did not make a bona fide effort to accommodate his situation after the decision was properly made to terminate the split in the second shift. Indeed, Eversley concedes that what actions MBank took were reasonable. But he contends that these actions "[a]lthough reasonable ... are not accommodations at all. No job offer developed from these efforts." Eversley claims that the offer of a job in the Lock Box Department was not a reasonable accommodation because it involved a twenty percent pay cut. Eversley identifies only one action which he contends MBank should have taken, but failed to, namely, requiring one of the two first shift control operators to switch with him. Indeed, that is the sole contention which Eversley makes on appeal, viz.: that judgment against him was improper because MBank "failed to demonstrate that it would suffer any undue hardship in accommodating Appellant by requiring another employee to trade shifts with him." (Emphasis added.)

We reject Eversley's contention. In Hardison, the Court noted that to require the employer "to bear more than a de minimis cost in order to give ... Saturdays off is an undue hardship." 97 S.Ct. at 2277. More directly relevant to Eversley's contention, Hardison likewise states:

"There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift...