Getz v. Com. of Pennsylvania, Dept. of Public Welfare
| Decision Date | 08 September 1986 |
| Docket Number | No. 86-1061,86-1061 |
| Citation | 802 F.2d 72 |
| Parties | 41 Fair Empl.Prac.Cas. 1477, 41 Empl. Prac. Dec. P 36,571, 55 USLW 2208 GETZ, Susan, Appellant, v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Gerald Gornish, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellant.
LeRoy S. Zimmerman, Atty. Gen. by Carl Vaccaro, Deputy Atty. Gen., John G. Knorr, Sr. Deputy Atty. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Philadelphia, Pa., for appellee.
Before ALDISERT, Chief Judge, and HIGGINBOTHAM and HUNTER, Circuit Judges.
Susan Getz is an employee of the Department of Public Welfare of the Commonwealth of Pennsylvania. She is an Orthodox Jew. The Commonwealth has permitted her to take religious holidays with pay under the provisions of the collective bargaining agreement between the Commonwealth and state employees. Nevertheless, in order to accumulate more vacation leave, she asked that she be able to work overtime instead of working only the required seven and one-half hours a day. When the Commonwealth refused, she sought relief in the State Human Relations Commission and the EEOC. Neither granted relief. She then sought relief in the district court and Judge Weiner held that she had not established a prima facie case, 644 F.Supp. 26. (E.D.Pa. 1985). She appeals and we now affirm.
Her action is based on Title VII of the Civil Rights Act alleging that her employer has discriminated against her on the basis of religion. On review the findings of fact are tested by the clearly erroneous rule; selection and interpretation of appropriate legal precepts are plenary.
Appellant is a case worker, a civil service employee, and is covered by the provisions of the collective bargaining agreement between the Commonwealth of Pennsylvania and the Pennsylvania Social Services Union. As to her and other employees of comparable status, the agreement provides that she is entitled to the following days of leave with pay per year in the years 1984-1985 and 1985-1986:
1984-1985 1985-1986
--------- ---------
1. Annual Leave 15.6 days 15.6 days
2. Personal Leave 4 days 5 days
3. Sick Leave 15 days 13 days
4. State Holidays 12 days 10 days
As part of her religious beliefs she is required to refrain from work on thirteen days during the year. Her holidays do not occur on the same date each year and a varying number of the days fall on weekends or other state holidays. In 1985, five of her religious holidays occurred on a weekend or a state holiday; in 1986, seven will.
We deem it significant that during her entire employment she has been permitted to refrain from work on all her religious holidays and has been able to observe all her religious holidays by taking leave with pay. During 1986 she will be granted 20.6 days of leave with pay; this is in addition to the leave accumulated of five days not used in 1985.
In 1984 she requested that she be permitted to accumulate ten days of compensatory time by working an additional one-half hour on certain days of the week.
It is Pennsylvania's refusal to accede to her request to accumulate ten days of compensatory time by working overtime that forms the basis of suit which she brought under Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-2(a) (1982), which in pertinent part, provides that it is an unlawful practice for an employer:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....
The burden in these cases is familiar: if the plaintiff establishes a prima facie case, the burden then shifts to the employer to show that it made good faith efforts to accommodate, and if such efforts were unsuccessful, to demonstrate that it was unable to reasonably accommodate without undue hardship.
The district court made findings which we do not deem erroneous that there is no evidence that she has been required to comply with an employment condition that conflicts with her religious beliefs and practices. The evidence shows that the Commonwealth's policy, which applies to all employees, is to permit its employees to take paid leave on days they wish to observe as personal religious holidays. Clearly this does not discriminate against the appellate.
Even with the plan set forth by the Commonwealth we deem it significant that she will have nearly three weeks of paid leave remaining after having the religious holidays. The district court observed:
Plaintiff has not had to choose between sacrificing a portion of her salary and her religious beliefs nor has she had to choose between taking a religious holiday and being penalized by her employer for missing a workday. On the contrary,...
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