Fischer v. Forestwood Co., Inc.

• Decision Date: 12 May 2008
• Docket Number: No. 06-4121.,06-4121.
• Citation: 525 F.3d 972
• Parties: Shem FISCHER, Plaintiff-Appellant, v. FORESTWOOD COMPANY, INC., a Utah corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

525 F.3d 972

Shem FISCHER, Plaintiff-Appellant, v. FORESTWOOD COMPANY, INC., a Utah corporation, Defendant-Appellee.

No. 06-4121.

United States Court of Appeals, Tenth Circuit.

May 12, 2008.

James W. Stewart (Boyd L. Rogers with him on the briefs) Ballard Spahr Andrews & Ingersoll, LLP, Salt Lake City, UT, for Appellant.

Raymond Scott Berry, (Rodney R. Parker, Snow, Christensen & Martineau, Salt Lake City, UT, with him on the brief) for Appellee.

Before HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Shem Fischer sued Forestwood Company, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a), for unlawful discharge, retaliation, and failure to hire. He alleged that Forestwood discriminated against him because he was expelled from the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) and because he objected to the company firing another employee who had also left the church.

The district court granted Forestwood summary judgment on all claims. We AFFIRM the district court's grant of summary judgment on the claims of unlawful discharge and retaliation. Finding the district court improperly excluded certain evidence as inadmissible hearsay, however, we REVERSE the grant of summary judgment on the failure-to-hire claim and REMAND for further proceedings.

I. Background

Forestwood is a family-owned business in Hildale, Utah, that manufactures and installs wooden cabinetry. Fischer worked at Forestwood full-time from 1987 until July 2000. He served many roles during that time; working first as a shopworker, then as an installer, and finally as a salesman. When Fischer's tenure ended, he was the company's top cabinet salesman. While Fischer was employed by Forestwood, his half-brother, Marvin, managed the company, and his father, Erwin, served as its president. Another half-brother, David, was also employed by the company.

Forestwood's management (including Marvin and Erwin) were closely involved with the FLDS, whose principal congregation was located in Hildale. The company had given cash donations to the FLDS in the past. Since at least 1999, the company refused to hire or interview anyone who was not a member of the FLDS church. At the time Fischer filed his complaint with the EEOC, only one employee — out of seventy total employees — was not a member of the church.

From 1991 through 2000, Fischer worked closely with John Musser, who prepared cabinet patterns for Forestwood. Musser, like Fischer, was a member of the FLDS church during most of that time. In August or September 1999, Musser and his wife decided to leave the FLDS and become members of the LDS church. They moved 24 miles up the road from Hildale to Hurricane because they felt uncomfortable continuing to live among FLDS members. For the next year, Musser continued to work for Forestwood because he derived a substantial portion of his income from this employment.

About the time Musser left the FLDS church, Fischer publicly criticized the church and began skipping church functions. As a result, his co-workers sometimes heckled him. Fischer also claimed anonymous notes expressing concern about his faith were left on his car's windshield and in his message box at work. He felt increasingly uncomfortable at Forestwood. In the spring of 2000, he was formally expelled from the FLDS church.

On July 16, 2000, Warren Jeffs (counselor, son, and heir to FLDS prophet and leader Rulon Jeffs) delivered a sermon urging FLDS members to stop supporting apostates through their business relationships. Jeffs believed funds from those relationships were being used to fight the church. He urged members to "[b]e kind to everyone, but leave apostates alone," and called upon the membership to "stop helping our enemies fight against us." R., Vol. I at 115-20.

A short time later, Fischer met with his half-brothers Marvin and David. At that meeting, Marvin informed Fischer that he planned to fire Musser. Fischer objected to this termination, arguing firing Musser would constitute religious discrimination and would "be over the top of me." Marvin responded by saying "if that's the way it's got to be." R., Vol. II at 372. Fischer interpreted Marvin's statement as indicating he was fired. Soon after this exchange, however, Marvin asked Fischer to reconsider leaving the company. Fischer did not accept this proposal. Instead, he asked if he could have time to finish up his current projects. Marvin agreed and Fischer left the company a short time later.

In November 2000, Fischer sought reinstatement with the company. He approached his father, Erwin, who was president of the company. Fischer surreptitiously taped two of the conversations. In the first conversation, he pushed hard for reinstatement, but his father held back, claiming someone else had already taken over Fischer's previous duties. Erwin ended the conversation by saying he would discuss the issue with the company and others. In the second conversation, Erwin indicated he wanted Fischer back at the company, but only if Fischer rejoined the church.

II. Discussion

Fischer sued Forestwood under Title VII for unlawful discharge, retaliation, and failure to hire.¹ The district court granted Forestwood summary judgment on all three claims. In reaching this decision, the court also decided the two recorded conversations between Fischer and Erwin were inadmissible hearsay.

A. Standard of Review

We review a grant of summary judgment de novo. Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.2007). Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). In conducting our analysis, we view all of the facts in the light most favorable to the non-movant and draw all reasonable inferences from the record in the non-movant's favor. Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir.2006).

"While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy, 480 F.3d at 1197. "When a party relies on affidavit evidence, it may be insufficient to create a triable fact if it is nonspecific or otherwise non-responsive, vague, conclusory, or self-serving." Id. at 1197-98.

B. Unlawful Discharge and Retaliation

Fischer first argues he was fired because he dropped out of the FLDS church and protested the treatment of his friend, Musser. The district court concluded Fischer did not produce sufficient evidence demonstrating he was subjected to an adverse employment action. We agree.

Under Title VII, an employer must not discharge "any individual ... because of such individual's ... religion." 42 U.S.C. § 2000e-2(a)(1). When the plaintiff only puts forth circumstantial evidence of discrimination, we evaluate such claims under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework.² Stover v. Martinez, 382 F.3d 1064, 1077 (10th Cir.2004) (citing Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1037-38 (10th Cir.1993)). To establish a prima facie unlawful discharge case, the plaintiff must show the following:

(1) that he was subjected to some adverse employment action;

(2) that, at the time the employment action was taken, the employee's job performance was satisfactory; and

(3) some additional evidence to support the inference that the employment actions were taken because of a discriminatory motive based upon the employee's failure to hold or follow his or her employer's religious beliefs.

Shapolia, 992 F.2d at 1038 (internal citations omitted and emphasis added).

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision to discharge the plaintiff. If the defendant meets its burden of production by offering a legitimate rationale in support of its employment decision, the burden shifts back again to the plaintiff to show that the defendant's proffered reasons were a pretext for discrimination. Exum v. United States Olympic Comm., 389 F.3d 1130, 1134-35 (10th Cir.2004).

Fischer also alleges Forestwood retaliated against him because he objected to the company firing Musser.³ In particular, Fischer told Marvin that the termination of Musser was unlawful because it was based solely on the fact that Musser was no longer a member of the FLDS church. Title VII forbids retaliation against an employee because he opposed any practice made unlawful by Title VII, or because he "participated ... in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

Without direct evidence of discrimination,⁴ we analyze retaliation claims under the McDonnell Douglas framework. Stover, 382 F.3d at 1070. To establish a prima facie case of retaliation, Fischer must show (1) he engaged in protected opposition to discrimination; (2) Forestwood took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse action. Id. at 1071. As in an unlawful discharge claim, once the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence of a non-discriminatory reason for the conduct, and then the plaintiff has the burden of demonstrating pretext.

In sum, to establish a prima facie case on both the unlawful discharge and retaliations claims, Fischer must prove that the company subjected him to an adverse employment action. An adverse employment action "must be materially adverse to the employee's job status." Duncan v. Manager, Dep't of Safety, Denver, 397 F.3d 1300, 1314 (10th Cir.2005). Proof of either actual or...