U.S. v. City of Albuquerque

• Decision Date: 29 November 1976
• Docket Number: No. 75-1557,75-1557
• Parties: 13 Fair Empl.Prac.Cas. 1564, 12 Empl. Prac. Dec. P 11,244 UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 110

545 F.2d 110

13 Fair Empl.Prac.Cas. 1564,

12 Empl. Prac. Dec. P 11,244

UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE et al., Defendants-Appellees.

No. 75-1557.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 19, 1976.

Decided Nov. 29, 1976.

Dennis J. Dimsey, Atty., Dept. of Justice, Washington, D.C. (Victor R. Ortega, U. S. Atty., Albuquerque, N.M., J. Stanley Pottinger, Asst. Atty. Gen., and Brian K. Landsberg, Dept. of Justice, Washington, D.C., on the brief), for plaintiff-appellant.

Chris Lucero, Jr., Santa Fe, N.M. (James A. Thompson, Albuquerque, N.M., on the brief), for defendants-appellees.

Before McWILLIAMS and BREITENSTEIN, Circuit Judges, and ZIRPOLI ^*, District Judge.

McWILLIAMS, Circuit Judge.

This is an action brought by the United States against the City of Albuquerque and its fire chief for alleged religious discrimination in its employment practices within the city fire department, in violation of 42 U.S.C. § 2000e-2. One Salomon Zamora, a fireman first class in the Albuquerque fire department, was discharged after he (Zamora) failed to report for work on the day shift for Saturday, October 28, 1972. Zamora, a Seventh Day Adventist, had refused to appear for work on October 28, 1972, because such, in his view, would have violated one of the practices of his particular religion which forbade working on the Sabbath, except for emergencies. The Sabbath as observed by the Seventh Day Adventists is from sundown Friday until sundown Saturday. By answer the City of Albuquerque admitted Zamora's discharge but denied that such discharge resulted from any discrimination against Zamora.

The Honorable Edmund L. Palmieri, Senior Judge for the Southern District of New York, sitting by designation in the United States District Court for the District of New Mexico, heard the case and after a two-day trial found in favor of the City of Albuquerque and dismissed the action. The trial judge's memorandum opinion was elaborate and in great detail, containing a preliminary statement, 69 findings of fact and 17 conclusions of law. That opinion is now reported at 9 Employment Practices Decisions P 10,182 and the reader is referred to that opinion for the background facts out of which the present controversy arises. Such background material will be developed in the present opinion only insofar as is necessary to an understanding of our disposition of the matter.

We are here concerned with two sections of the Civil Rights Act of 1964, as amended, namely 42 U.S.C. § 2000e-2 and 42 U.S.C. § 2000e(j). The former section reads in pertinent part as follows:

(a) It shall be an unlawful employment practice for an employer

(1) 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;

Section 2000e(j) provides as follows:

(j) 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. (Emphasis added.)

In his memorandum opinion the trial judge commented that there was ample evidence to indicate that the real reason Zamora was discharged was his own "intransigence" and that he had not been discharged because of his religion. However, the trial judge did not rest his decision on that ground and proceeded to apply to the factual situation then before him the provisions of 42 U.S.C. § 2000e(j). In this regard the trial court found that the City of Albuquerque made reasonable accommodations to Zamora's religious practices and that further and additional accommodation would have resulted in an undue hardship on the business of the fire department. In our view these findings are not clearly erroneous and it is on this basis that we affirm. Fed.R.Civ.P. 52(a). Upon review of the record we cannot say with a definite and firm conclusion that a "mistake" was committed by the trial court. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The issues before the trial court were not ones which were open and shut, but on the contrary were ones upon which reasonable minds could well differ. In such circumstance the trial court's findings should stand. Brief reference to the facts will put the matter in focus.

Zamora joined the Seventh Day Adventist Christian Church in 1961. In 1968 Zamora and his wife were divorced, and he was disfellowshipped from his church. In March 1969 Zamora became a member of the Albuquerque Fire Department. At the time of his employment Zamora was not a member of the Seventh Day Adventists, and he indicated in his application that he could work any day of the week, and apparently did work whichever shift he was called on until around September 1971. At this time Zamora remarried his former wife and he thereafter rejoined his church.

As indicated above, one tenet of the Seventh Day Adventist is that he observe the Sabbath Day, which commences at sundown on Friday and ends at sundown on Saturday. "Observe" means to refrain from unnecessary work on the Sabbath, although a Seventh Day Adventist may engage in so-called "emergency" work on that day. Just what constitutes "emergency" work is apparently a matter between the member and his God. However, the present case does not turn on this distinction between unnecessary work and emergency work.

Zamora, a fireman first class, was assigned to Division 1 of the Fire Suppression Department, which works on a 56-hour work week. The day shift is from 8:00 a. m. to 6:00 p. m., and the night shift is from 6:00 p. m. to 8:00 a. m. The work force at Division 1 is divided into three platoons: A, B, and C, which rotate on the basis of working three consecutive day shifts, next working three night shifts, and then having three days off. Consequently, no fireman has the same days off each week, since a nine-day work cycle is imposed on a seven-day week.

On the work schedule outlined above, Zamora would be called on to work either the Friday night shift or the Saturday day shift some 35 times in a year. A minor problem did arise in connection with the Friday day shift, since in winter the sun would set before the end of the Friday day shift, i. e. 6:00 p. m. Similar problems arose in summer when sundown did not occur until sometime after the Saturday night shift commenced. However, there was no particular problem in this connection as Zamora, with the apparent approval of his superior, was in each instance, though on duty, not required to perform so-called menial work after sundown on Friday, nor before sundown on Saturday. The present controversy, then, stems from those occasions when Zamora was called on to work either the Friday night shift or the Saturday day shift.

From October 1971 until October 1972, Zamora used sick leave some 13 times in order to avoid working Friday nights or Saturday days. During this period he also took annual leave several times and he traded shifts once in order to avoid work on his Sabbath. However, in early September 1972, the matter of Zamora's not working on Friday nights or Saturday days became a subject of dialogue between Zamora and his supervisors in the fire department. Whether Zamora himself brought up the question, or whether the matter surfaced when Zamora, after taking sick leave, was not found at his home, but in church one Saturday morning, is not really material. In any event both Zamora and his supervisor, after discussion, agreed that it was a misuse of sick leave to take sick leave, when he was not in fact ill, in order to avoid working Friday nights and Saturday days.

On October 9, 1972, Zamora submitted a request for unscheduled vacation leave for the day shift on Saturday, October 28, 1972. On October 23, 1972, this request was denied, the assigned reason therefor being that if the request were granted, District 1 would be undermanned on that particular date. Two other firemen and a lieutenant, who, prior to Zamora, had similarly applied for unscheduled vacation, were also denied leave for the same reason. However, these men obtained time off on October 28, 1972, by trading shifts. Zamora's request for unscheduled leave on October 28, 1972, was kept open, even though denied on the 23rd, in order to allow the request to still be granted if a vacancy occurred. However, none developed and on October 27, 1972, at approximately 5:30 p. m. he was formally notified that his request for unscheduled leave for October 28, 1972, had been finally denied. Zamora at that time informed his superior that he would not report for work on October 28, 1972, and he did not. Thereafter Zamora was suspended and eventually he was discharged for such absence. Prior to the actual discharge there was discussion back and forth between Zamora and the fire chief, with the latter urging Zamora to reconsider and try to work it out within the rules and regulations of the department. Zamora remained adamant and his formal discharge followed.

As indicated above, the trial judge found that the City of Albuquerque had attempted to make reasonable accommodations to Zamora's religious practices and that such reasonable accommodations were in fact embodied in the rules and regulations of the fire department. In this regard there was a rules committee in the City's fire department, which consisted of one member from each rank in the department, which committee worked in conjunction with the fire chief. If the committee and the chief agreed on a rule or regulation, it was adopted. In the case of a disagreement between the committee and the chief, the matter was referred to a personnel director, who...