Turpen v. Missouri-Kansas-Texas R. Co., MISSOURI-KANSAS-TEXAS

• Decision Date: 19 July 1984
• Docket Number: No. 83-1493,MISSOURI-KANSAS-TEXAS,83-1493
• Parties: 35 Fair Empl.Prac.Cas. 492, 34 Empl. Prac. Dec. P 34,453, 34 Empl. Prac. Dec. P 34,531 Johnnie F. TURPEN, Plaintiff-Appellant, v.RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1022

736 F.2d 1022

35 Fair Empl.Prac.Cas. 492,

34 Empl. Prac. Dec. P 34,453,

34 Empl. Prac. Dec. P 34,531

Johnnie F. TURPEN, Plaintiff-Appellant, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Defendant-Appellee.

No. 83-1493.

United States Court of Appeals Fifth Circuit.

July 19, 1984.

Jenkins & Watkins, David Watkins, Dallas, Tex., for plaintiff-appellant.

Worsham, Forsythe & Sampels, Robert A. Wooldridge, Richard L. Adams, Dallas, Tex., for Missouri-Kansas-Texas R. Co.

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

Before BROWN, GEE, and RUBIN, Circuit Judges.

GEE, Circuit Judge:

Plaintiff Johnnie F. Turpen, a Seventh-Day Adventist, was discharged from his temporary employment with the defendant Missouri-Kansas-Texas Railroad ("the Katy") because, following his religious belief, he did not report for work on his Sabbath. After pursuing his union grievance proceedings to no avail, Turpen instituted this religious discrimination suit under section 701(j) of Title VII, 42 U.S.C. Sec. 2000e(j), against the Katy. On the basis of all the evidence, the district court found that the Katy had not violated section 701(j) and dismissed the action. Turpen appeals, arguing that the district court misconstrued the employer's burden of proof under section 701(j) and that the efforts made by the Katy did not meet the statutory requirement as set out below. We conclude that the district court required the correct proof of the Katy and was not clearly erroneous in finding that the Katy made a good faith effort to accommodate Turpen and that further measures would result in "undue hardship" to the Katy. We therefore affirm.

Background

For the 29 years preceding March 1980, Turpen was employed by the Rock Island Railroad ("the Rock Island") as a carman at the Peach Yard in Fort Worth, Texas. He became a Seventh-Day Adventist in 1974; by that time he was sufficiently high on the seniority roster to enable him to bid on jobs that would allow him to have Friday nights and Saturdays off, accommodating his Sabbath. ¹

In March 1980, the Rock Island went into receivership and terminated all its employees. Portions of its lines were taken over on an interim basis by several national rail carriers. Pursuant to special legislation, 45 U.S.C. Sec. 901 et seq., these carriers, including the Katy, and those unions that had had collective bargaining agreements with the Rock Island, including Turpen's union, the Brotherhood of Railway Carmen (BRC), ² entered into a Labor Protective Agreement dated March 4, 1980 ("March 4 agreement") covering Rock Island employees taken into the employ of interim service operators over the Rock Island lines. The Katy obtained ICC authority to operate the Rock Island trackage at the Peach Yard in May of 1980. The March 4 agreement provided that the collective bargaining agreement in effect between BRC and the Katy would apply to any former Rock Island employees the Katy chose to employ. To avoid delays in operations, the agreement also allowed the Katy to hire former Rock Island employees on a temporary basis while negotiating an agreement concerning the manner in which seniority would be allocated between the Katy's existing employees and the former Rock Island employees.

When the Katy began operating the Peach Yard, it agreed that should it be unable to operate the trackage with its existing employees, it would give former Rock Island employees the right of first hire based on their seniority on the Rock Island roster. In setting up the 24 hours a day, seven days a week schedule for the Peach Yard, the Katy determined that six additional employees were needed to man the operation and hired the top six off the Rock Island roster; Turpen was number four. Pursuant to the March 4 agreement, the temporary employees selected their positions in order of seniority. To permanently fill these jobs, however, the Katy had to post the jobs, accept bids and fill the jobs according to its contract with BRC. The schedule for these temporary employees drawn up by the Katy provided three positions with Friday evenings and Saturdays off. ³ These three jobs were selected by the three former Rock Island employees with greater seniority than Turpen.

Turpen reported to work with the Katy as a temporary employee on June 16, 1980. Upon returning his completed applications forms just before starting to work, he informed Burt Lawson, the Katy representative in charge of hiring for the temporary positions, of his desire to have Friday evenings and Saturdays off to accommodate his religious beliefs. At that time, Lawson gave Turpen a schedule that required working on Friday evenings and Saturdays, but he also told Turpen that he had reported the schedule request to his superior, Martin Rister. Rister, however, testified that Lawson did not contact him about Turpen until the next Monday, June 23.

Rister testified that upon receiving the call from Lawson he contacted his boss, Harold Hacker, who instructed him to attempt to rearrange the schedule so as to allow Turpen to have his requested days off. Rister worked on the schedule for "about an hour and a half," but was unable to rearrange the schedule so that it met the needs of the railroad and satisfied the collective bargaining agreement, while accommodating Turpen's religious beliefs. He called Hacker back and told him rescheduling was impossible.

Turpen worked the week of June 16th, including working after sundown on Friday, June 20. On Saturday, the 21st, he called in to say that he would not be able to report to work that day for religious reasons. On Monday the 23rd he received a reprimand from the Katy for "not protecting his trick." Turpen responded that he would not work during his Sabbath, but was told that he had to report as assigned. Two days later Turpen drafted a letter in which he stated that he would not work Friday evenings or Saturdays, but offered to work another shift, including a "swing" (mixed) shift, or to pay the difference between straight time and overtime that the Katy would have to pay to fill his job on Friday evenings and Saturdays. Rister testified that he had considered and rejected the swing shift option in attempting to alter the schedule to accommodate Turpen.

A few days later, Rister conferred with BRC representative Henry Lamance to determine whether a solution could be found for Turpen's scheduling problem. Rister learned from Lamance that Turpen's co-workers were aware of his desire to have rest days on his Sabbath and that they had complained to Lamance about being called to protect Turpen's assignment. Although voluntary swaps between employees were not barred by the collective bargaining agreement at this point because these positions were temporary, Lamance's description of the other employees' attitude toward Turpen discouraged Rister from further pursuit of the possibility of a voluntary swap between Turpen and an employee who, by virtue of his seniority, had obtained a position with Saturdays off. Rister also learned that the Union refused to waive the "job choice by seniority" provisions of the collective bargaining agreement. Thus, no involuntary swaps could have been ordered by the Katy.

Turpen left his post early, without authorization, on Friday, June 27th, at sundown. He did not report to work on the following day, Saturday the 28th. The Katy scheduled a formal investigation of Turpen's failure to report to his assigned "trick" and his refusal to report in the future during his Sabbath. As a result of this hearing, Turpen was suspended from active service; a few days later, on July 7th, 1980, he was discharged. The BRC processed Turpen's discharge grievance, but did not succeed in getting Turpen reinstated.

The final bids on the Peach Yard jobs were accepted by the other former Rock Island employees in the latter part of July 1980, and became permanent jobs as of August 1, 1980. The positions established in the temporary schedule remained in effect, and the three positions offering Friday evenings and Saturdays off were bid and filled by the three employees senior to Turpen. The Katy ceased operation of the Rock Island trackage at the Peach Yard on December 31, 1981, and all the former Rock Island employees were terminated from service at that time.

On July 19, 1980, Turpen filed charges of religious discrimination with the EEOC. In October of that year the EEOC issued a finding of probable cause to believe that religious discrimination had occurred. Attempts at conciliation followed; when these proved ineffective, the EEOC issued Turpen a "right to sue" letter. Plaintiff timely filed his original complaint in federal district court on September 9, 1981. After a bench trial, the district court dismissed the action, finding that the Katy had not breached its duty under section 701(j) to attempt reasonable accommodation to the bona fide religious needs of the plaintiff and that further accommodations would have imposed an undue hardship on the Katy's operations. The Employer's Burden under 701(j)

Title VII's prohibition of religious discrimination in employment, 42 U.S.C. Sec. 2000e(j), provides that an employer engages in an unfair employment practice if he discriminates against an employee because of any aspect of his religious practices or beliefs, unless the employer shows that he cannot "reasonably accommodate" the employee's religious needs without "undue hardship on the conduct of the employer's business." 42 U.S.C. Sec. 2000e(j). ⁴

A plaintiff in a section 701(j) case makes out a prima facie case of religious discrimination by proving: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment requirement. See, e.g., Brener v. Diagnostic Center Hospital, 671 F.2d 141, 144 (5th Cir.1982), and cases...