Proctor v. Consolidated Freightways Corp. of Delaware, 84-4323

• Decision Date: 01 August 1986
• Docket Number: No. 84-4323,84-4323
• Citation: 795 F.2d 1472
• Parties: 41 Fair Empl.Prac.Cas. 704, 40 Empl. Prac. Dec. P 36,333, 55 USLW 2139 Corine PROCTOR, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1472

795 F.2d 1472

41 Fair Empl.Prac.Cas. 704,

40 Empl. Prac. Dec. P 36,333, 55 USLW 2139

Corine PROCTOR, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, a Delaware corporation, Defendant-Appellee.

No. 84-4323.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 5, 1986.

Decided Aug. 1, 1986.

Stephen Brischetto, Baldwin & Brischetto, Portland, Or., for plaintiff-appellant.

James H. Clarke, Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ALARCON, REINHARDT, and THOMPSON, Circuit Judges.

ALARCON, Circuit Judge:

Corine Proctor (hereinafter Proctor) appeals from the district court's order granting summary judgment in favor of Consolidated Freightways Corporation (hereinafter Consolidated) on her Title VII complaint alleging employment discrimination based on religion. We reverse and remand because Proctor has established that a triable issue of material fact exists concerning whether Consolidated complied with its statutory obligation to initiate a good faith attempt to accommodate Proctor's religious beliefs prior to terminating her. Proctor's request for an award of attorney's fees on appeal pursuant to 42 U.S.C. Sec. 2000e-5(k) is denied without prejudice because she is not a "prevailing party" within the meaning of that statute.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Proctor commenced employment with Consolidated in January of 1968 as a payroll clerk. In 1974, she was promoted to a "balancing clerk," a position in which she continued for 4 to 5 months. Proctor worked Saturday overtime when necessary as a balancing clerk. She was "bumped" from this position by a senior employee due to a reduction in workforce. Proctor then assumed the position of "data input clerk," a lower-paid position, where she worked until May, 1981.

Proctor became a member of the Seventh-Day Adventist Church on June 11, 1977. The Seventh-Day Adventist Church teaches its members to observe the Sabbath from sundown Friday to sundown Saturday. The Church prohibits its members from engaging in work activities on the Sabbath.

In her position as a data input clerk, Proctor was required to work overtime occasionally on Saturdays. On December 12, 1977, Consolidated passed around a "buck slip" (a note containing the names of employees who were to work on Saturdays) indicating that the data input clerks would be required to work on Saturday. Proctor responded by giving Consolidated a letter advising it of her religious beliefs and the fact that they precluded her from working on Saturday.

When Proctor did not show up for work on Saturday, December 17, 1977, she was placed on a five-day suspension. Proctor filed a grievance with the Joint Grievance Committee, which ruled against her because she had not given timely notice that she would not be reporting to work on that Saturday. John Grieve, Manager of Labor Relations for Consolidated, subsequently instructed Proctor's supervisors to accommodate her religious beliefs and not to require her to work overtime as a data input clerk. Consolidated successfully accommodated Proctor during the remaining three years in which she held the data input clerk position, by substituting others of the 17 full-time and part-time data input clerks, when Saturday work was required.

In late July, 1979, Proctor bid on two positions which required Saturday overtime work. Proctor refused to agree to work on Saturdays, and her bids were rejected. Proctor filed a grievance which she later withdrew. She subsequently filed charges of religious discrimination with the Oregon Bureau of Labor and Industries. The Bureau of Labor and Industries ruled that the charges were unfounded.

On May 7, 1981, Proctor bid for a balancing clerk position. She was asked to sign a statement acknowledging that she might be required to work Saturdays if she accepted the balancing clerk position. She refused to sign the statement. Consolidated nevertheless awarded her the position, and she accepted.

Proctor began working as a balancing clerk on May 18, 1981. On May 28, 1981, Majel Olson, Proctor's supervisor, circulated a buck slip indicating that overtime work would be required on Saturday, May 30. Proctor indicated on the slip that she would not work on Saturday because it was her Sabbath. Consolidated requested volunteers to work overtime during that week, and was successful in avoiding Saturday overtime for all balancing clerks. The same sequence of events occurred during the week of September 12, 1981. Again, Consolidated avoided Saturday overtime for balancing clerks by securing volunteers to work overtime during the week.

On September 16, 1981, Olson circulated a buck slip indicating that Proctor was to work on Saturday, September 19. Proctor again made a notation on the slip that she could not work on the Sabbath. On September 17, Olson read a statement to Proctor informing her that she would be disciplined if she failed to present herself for work on the following Saturday. Proctor did not show up for work on the 19th, and she was suspended without pay for three days as a result.

Proctor returned to work as scheduled on September 24, 1981. On that date, Olson circulated a buck slip scheduling work for Saturday, September 26, 1981. Proctor again made a notation on the slip indicating her inability to work on that day. Proctor did not report for work on September 26, and Consolidated terminated her two days later.

Proctor filed grievances on both the suspension and the discharge. The arbitrator denied her grievances, finding that Proctor "caused her own problem by bidding off her job onto a job which required Saturday overtime work," and that Consolidated had no additional duty to accommodate Proctor in her new position. On February 4, 1982, Proctor filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC). On January 4, 1983, the EEOC found reasonable cause to believe that the discrimination charge was true. When conciliation proved unavailing, the EEOC issued a notice of right to sue.

Proctor filed a timely complaint in district court for violation of Title VII. The court granted summary judgment for Consolidated, apparently relying upon the magistrate's Findings and Recommendation. The magistrate found that Consolidated had a duty to make a reasonable accommodation of Proctor's religious beliefs even after Proctor became a balancing clerk; nevertheless, he concluded that Consolidated had made an adequate showing that accommodation could not be accomplished without undue hardship for Consolidated and that no triable issues of material fact remained.

II. STANDARD OF REVIEW

This court reviews a district court's grant of summary judgment de novo, in the light most favorable to the nonmoving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

III. FAILURE TO INITIATE GOOD FAITH EFFORTS TO ACCOMMODATE PROCTOR'S RELIGIOUS BELIEFS

Title 42 of the United States Code, section 2000e-2(a)(1) prohibits an employer from failing to hire, refusing to hire, or discharging any individual because of her religion. The term "religion" is defined as follows:

The term "religion" includes 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 on the conduct of the employer's business.

42 U.S.C. Sec. 2000e(j).

To establish a prima facie case of religious discrimination under Secs. 2000e-2(a)(1) and (j), the plaintiff has the burden of pleading and proving that (1) she had a bona fide religious belief; (2) she informed her employer of her religious views and that they were in conflict with her responsibilities as an employee; and (3) she was discharged because of her observance of that belief. Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 401 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979). The plaintiff is not required to show as part of her prima facie case that she made efforts to compromise her religious beliefs before seeking an accommodation from her employer. Id. at n. 3.

There is no dispute in the instant case that Proctor established a prima facie case of discrimination. She showed that (1) she had a bona fide belief that working on Saturday was contrary to her religious faith; (2) she informed Consolidated of her religious views and their conflict with working overtime scheduled on Saturdays; and (3) she was discharged for her failure to show up for work on Saturday.

Once the employee has established a prima facie case, the burden shifts to the employer to prove that it made good faith efforts to accommodate the employee's religious beliefs. Anderson, 589 F.2d at 401. The burden to undertake initial steps toward accommodation rests upon the employer, not the employee. Id. In Burns v. Southern Pacific Transportation Co., 589 F.2d 403 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979), the companion case to Anderson, we noted that Title VII was designed to change prior case law condoning the failure of an employer to make any effort to accommodate its employee's religious beliefs. Id. at 405. We concluded: "Thus, the employer is required to take some steps in negotiating with the employee to reach a reasonable accommodation to the particular religious beliefs at issue." Id. at 406; accord American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986) (per curiam) (in Burns this court recognized that "it is incumbent upon the employer to undertake some initial steps to...