Sutton, Jr. v. Providence St. Joseph Med. Ctr.

• Decision Date: 11 August 1999
• Docket Number: No. 99-55050,99-55050
• Citation: 192 F.3d 826
• Parties: (9th Cir. 1999) KENNETH E. SUTTON, JR., Plaintiff-Appellant, v. PROVIDENCE ST. JOSEPH MEDICAL CENTER, a California non-profit corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 826

192 F.3d 826 (9th Cir. 1999)

KENNETH E. SUTTON, JR., Plaintiff-Appellant, v. PROVIDENCE ST. JOSEPH MEDICAL CENTER, a California non-profit corporation, Defendant-Appellee.

No. 99-55050

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 11, 1999--San Francisco, California

Filed September 16, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Ross S. Heckmann, Arcadia, California, for the plaintiff-appellant.

Douglas R. Hart, Sheppard, Mullin, Richter & Hampton, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding, D.C. No. CV-98-01288-RSWL

Before: John T. Noonan, David R. Thompson, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:

Defendant, the Providence St. Joseph Medical Center, refused to hire plaintiff Kenneth E. Sutton, Jr., after he failed to provide a social security number as required by federal law. Plaintiff brought this action alleging that Defendant thereby violated Title VII of the 1964 Civil Rights Act, as amended (Title VII), 42 U.S.C. S 2000e et seq.; the Religious Freedom Restoration Act (RFRA), 42 U.S.C. S 2000bb et seq.; the free speech guarantee of the First Amendment; the Privacy Act, 5 U.S.C. S 552a; and the Paperwork Reduction Act, 44 U.S.C. S 3512. Plaintiff also brought various state claims. The district court dismissed the federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and, thereafter, refused to exercise supplemental jurisdiction over the state claims. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

"Because this is an appeal from the dismissal of an action pursuant to Fed. R. Civ. P. 12(b)(6), we accept as true the facts alleged in the complaint." Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1171 (9th Cir. 1999), petition for cert. filed, No. 99-243 (Aug. 10, 1999).

On June 25, 1997, Defendant offered Plaintiff a position as a Senior Network Analyst. Plaintiff accepted. Before he could begin working for Defendant, however, Plaintiff was required to fill out employment forms that required, among other information, his social security number. Plaintiff believes that a social security number is the "Mark of the Beast " prophesied in the Book of Revelations, Chapters 13 and 14. Plaintiff therefore told Defendant that his religion prevented him from providing such a number. Because Plaintiff would not provide his social security number, Defendant refused to hire Plaintiff.

On February 24, 1998, Plaintiff brought this action, alleging that Defendant had violated Title VII, RFRA, the First Amendment, the Privacy Act, and various state constitutional provisions and laws. On June 1, 1998, Plaintiff amended his complaint to allege, in addition, that Defendant had violated the Paperwork Reduction Act. Thereafter, Defendant moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, dismissing Plaintiff's federal claims with prejudice. The district court then declined to exercise supplemental jurisdiction over Plaintiff's state claims and, accordingly, the court dismissed those claims without prejudice. This timely appeal ensued.

STANDARD OF REVIEW

The district court granted Defendant's Federal Rule of Civil Procedure 12(b)(6) motion. This court reviews such a decision de novo. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998).

TITLE VII

Title VII provides in part:

It shall be an unlawful employment practice for an employer --

(1) to fail or refuse to hire . . . any individual . . . because of such individual's . . . religion . . .[.]

42 U.S.C. S 2000e-2(a)(1). "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. S 2000e(j).

This court has adopted a two-part test for analyzing religious discrimination claims under Title VII. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc). First, "the employee must establish a prima facie case [of discrimination] by proving that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements." Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998). "[I]f the employee proves a prima facie case of discrimination, the burden shifts to the employer to show either that it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship." Id.

It is uncontested that (1) Plaintiff sincerely believes that his religion prevents him from providing a social security number, (2) Plaintiff informed Defendant of his belief, and (3) Defendant refused to hire Plaintiff because he did not provide Defendant with a social security number. Nevertheless, Defendant argues, and the district court held, that Plaintiff cannot establish a prima facie case, because Defendant is required by law to obtain Plaintiff's social security number. Specifically, the Immigration and Naturalization Service (INS), 8 C.F.R. S 274a.2(a) & (b)(1)(i), 8 C.F.R. S 274a.10 (b)(2); Immigration Form I-9; and the Internal Revenue Code (IRC), 26 U.S.C. S 6109(a)(3) & (d), require employers to provide the social security numbers of their employees.

Although they have disagreed on the rationale, courts agree that an employer is not liable under Title VII when accommodating an employee's religious beliefs would require the employer to violate federal or state law. This court has held that the existence of such a law establishes "undue hardship" (rather than prevents an employee from establishing a prima facie case). See Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1383-84 (9th Cir. 1984) (holding that the employee established a prima facie case, but that the employer demonstrated undue hardship; the requested accommodation "would risk liability for violating California Occupational Safety and Health Administration standards"). The Tenth Circuit has applied this approach specifically to a case in case in which a plaintiff challenged his employer's request for a social security number:

Under federal law, all employers are required to withhold certain income taxes and social security taxes and file a report with the Internal Revenue Ser vice as to each individual employee. These reports require identification of the employee by social security number. Requiring Defendant to violate these laws in order to accommodate Plaintiff[`s religious beliefs] would result in undue hardship to Defendant.

Weber v. Leaseway Dedicated Logistics, Inc., No. 98-3172, 1999 WL 5111, at *1 (10th Cir. Jan. 7, 1999) (unpublished disposition) (citations omitted).¹

Pursuant to Bhatia, we hold that Defendant established that accommodation would cause "undue hardship " as a matter of law. We therefore affirm the district court's dismissal of Plaintiff's Title VII claim.

RFRA

Plaintiff next alleges that Defendant violated RFRA. The district court dismissed Plaintiff's claim, holding that (1) the Supreme Court in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), held that RFRA was unconstitutional as applied to federal law, and (2) Defendant was not acting under "color of law" as required by RFRA. We disagree with the district court that City of Boerne invalidated RFRA as applied to federal law, but we agree that Plaintiff cannot state a RFRA claim against Defendant, a private employer, in the circumstances presented.

A. Scope of the Decision in City of Boerne

In Employment Division v. Smith, 494 U.S. 872, 879 (1990), the Supreme Court held that the Free Exercise Clause ordinarily does not "relieve" a religious adherent from compliance with a neutral, generally applicable law. Congress enacted RFRA in response to that decision. RFRA was an attempt "to provide a claim or defense to persons whose religious exercise is substantially burdened by government" and "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)[,] and Wisconsin v. Yoder, 406 U.S. 205 (1972)." 42 U.S.C. S 2000bb(b) (parallel citations omitted).

In City of Boerne, a church brought a RFRA challenge to a local zoning board's denial of a building permit. 117 S. Ct. at 2160. The Supreme Court rejected the church's claim, holding that RFRA was unconstitutional.

The Court focused its analysis on Congress' power to enact legislation under section 5 of the Fourteenth Amendment, because "Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA's provisions, those which impose its requirements on the States." Id. at 2162 (emphasis added). The Court held that section 5 of the Fourteenth Amendment gives Congress the power "to enforce" the "provisions of this article." Id. at 2163 (citation and internal quotation marks omitted). The section thus gives Congress the power to remedy violations of the Fourteenth Amendment; it does not, however, give Congress the power to declare the substance of that Amendment: "The design of the Amendment and the text of S 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause." Id. at 2164.

Analyzing RFRA, the Court held that it was not a "remedial" sta...