Civil Action No. 00-2616 Section "C" (2)
December 6, 2001
ORDER AND REASONS
Plaintiff, Teresa N. George, brings this action against her former employer, The Home Depot, Inc., alleging religious discrimination in employment pursuant to Title VII, 42 U.S.C. § 2000e(j), and the Louisiana Employment Discrimination Law. La. Rev. Stat. § 23:301 et seq. This matter was referred to the undersigned magistrate judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 7.
Home Depot filed a motion for summary judgment, supported by several deposition transcripts. Record Doc. No. 28. Conceding solely for purposes of its motion that George can establish a prima facie case of religious discrimination, Home Depot argues that it is entitled to summary judgment because it made a good faith attempt to accommodate plaintiff's religious belief that she should not work on Sundays and because allowing her to have every Sunday off would have imposed an undue hardship on defendant.
George filed a cross-motion for summary judgment on liability only and incorporated therein her memorandum in opposition to defendant's motion for summary judgment. Although she failed to notice her cross-motion for hearing as required by this court's Local Rule 7.2E, I have considered it. Plaintiff's cross-motion and opposition memorandum are supported by her own affidavit, several deposition excerpts and a copy of her separation notice from Home Depot. Record Doc. No. 42.
Although plaintiff has not verified this exhibit as required by Fed.R.Civ.P. 56(e), the exhibit was authenticated during the deposition of Sharon Bordelon. See Defendant's Exh. B. Bordelon's deposition at 130-31 Exh. 9.
Home Depot received leave to file a reply brief in support of its motion for summary judgment, in which it incorporated its opposition to plaintiff's cross-motion for summary judgment. Record Doc. Nos. 45, 46. Although defendant attached some new exhibits to its reply memorandum, it used those exhibits solely to respond to plaintiff's motion for summary judgment. Therefore, the court is not required to give plaintiff additional time to respond to the new exhibits, as it would have been required to do if the new exhibits had supported Home Depot's own motion for summary judgment. Fed.R.Civ.P. 56(c), (e).
Also pending are defendant's motion in limine to exclude certain testimony and exhibits, Record Doc. No. 29, and plaintiff's motion to reconsider denial of her motion to compel an answer to Interrogatory No. 6. Record Doc. No. 39.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that Home Depot's motion for summary judgment, Record Doc. No. 28, is GRANTED and that plaintiffs cross-motion for summary judgment, Record Doc. No. 42, is DENIED. IT IS FURTHER ORDERED that defendant's motion in limine to exclude certain testimony and exhibits, Record Doc. No. 29, and plaintiff's motion to reconsider denial of her motion to compel an answer to Interrogatory No. 6, Record Doc. No. 39, are DISMISSED AS MOOT.
I. SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II. Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
If the movant bears the burden of proof on an issue, either because it is the plaintiff or is asserting an affirmative defense as a defendant, the movant must establish all of the essential elements of the claim or defense to warrant judgment in its favor. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence. is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citingCelotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; "the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Id. at 713 (quotingAnderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
II. GEORGE'S MOTION FOR SUMMARY JUDGMENT
George argues that she is entitled to summary judgment on liability. She alleges that Home Depot fired her because of her bona fide religious belief that she could not work on Sundays, failed to offer her a reasonable accommodation of her belief and cannot demonstrate that accommodating her belief would cause it undue hardship. Home Depot responds that George is not entitled to summary judgment because material facts are m dispute concerning her prima facie case of religious discrimination. The court agrees.
Plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of religious discrimination under Title VII, she must prove that (1) she had a bona fide religious belief that conflicted with an employment requirement, (2) the employer was informed of that belief and (3) she was discharged for failing to comply with the employment requirement. Bruff v. North Miss. Health Servs., Inc., 244 F.3d 495, 500 n. 9 (5th Cir. 2001); Weber v. Roadway Express, 199 F.3d 270, 273 (5th Cir. 2000).
The Louisiana statute that prohibits religious discrimination in employment mirrors Title VII. La. Rev. Stat. § 332(A)(1), (2). Louisiana courts and federal courts routinely look to the interpretation of Title VII for guidance in construing Louisiana's anti-discrimination law. Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998) (citations omitted); Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989); McMillon v. Corridan, No. 97-3981, 1998 WL 560334, at *2 (E.D. La. Aug. 31, 1998) (Clement, J) (citations omitted); Boudreaux v. Louisiana Casino Cruiises, Inc., 762 So.2d 1200, 1204 (La.App. 1st Cir.), writ denied, 772 So.2d 651 (La. 2000). Therefore, in considering George's discrimination claim under Title VII, the court is also considering her claim under Louisiana law.
When considering a summary judgment motion, the court cannot make credibility determinations. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . [when] ruling on a motion for summary judgment. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."Liberty Lobby, 477 U.S. at 255; accord Evans v. Ball, 168 F.3d 856, 858 (5th Cir. 1999); Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).
Thus, if resolution of a material fact in dispute turns on a credibility determination, the court cannot grant summary judgment. On the current record, factual disputes about whether George had a bona fide religious belief that she could not work on Sundays, whether she informed Home Depot of that alleged belief before her last day of work and whether she resigned or was fired, appear to turn on the credibility of plaintiff and the managers to whom she allegedly spoke. These factual disputes are material to the question of whether plaintiff can establish a prima facie case of discrimination. "The decision as to whether to believe [George's] or [Home Depot's] explanation of the facts requires the type of credibility determination by the court that is plainly inappropriate on motion for summary judgment." Id. at 298.
Because material facts remain in dispute, including whether George had a bona fide religious belief that she could not work on Sundays, whether she timely informed Home Depot of that alleged belief and whether she resigned or was fired, plaintiff is not entitled to summary judgment in her favor.
III. HOME DEPOT'S MOTION FOR SUMMARY JUDGMENT
A. Factual Background
For purposes of defendant's motion for summary judgment only, the following facts are undisputed, except as noted. Home Depot asks the court to assume, solely for purposes of its motion for summary judgment, that plaintiff could make out a prima facie case of religious discrimination, i.e., that (1) she had a bona fide religious belief, beginning some time in 1997, that her Catholic religion prohibited her from working on Sundays, which conflicted with defendant's requirement that she work on Sundays; (2) she informed her manager at the Home Depot in Atlanta, Georgia of that belief in 1997 and she informed the store manager at the Home Depot in Harahan, Louisiana of her belief when she was hired there in 1998; and (3) she was discharged on August 7, 1999 for failing to comply with Home Depot's requirement.
Of course, the foregoing facts are not established on the current record. There are conflicts in the testimony about whether George informed Harahan store manager Sharon Bordelon, assistant store manager Steve Burns and/or lead designer Les Steib at any time before the day she was fired that her religious beliefs prevented her from working on Sundays. However, the conflicts about when Home Depot was informed of plaintiffs beliefs are material only to her prima facie case. These conflicts are immaterial to the questions presented by Home Depot's motion, i.e., whether defendant offered George a reasonable accommodation of her religious beliefs and, if not, whether Home Depot would have suffered an undue hardship by offering such an accommodation. If the motion record establishes that Home Depot offered a reasonable accommodation or that it was unable to do so without undue hardship, defendant is entitled to judgment as a matter of law even if plaintiff could establish a prima facie case of discrimination.
George was hired by Home Depot to work at its Harahan store as a cashier and began working there on July 31, 1998. The Harahan store has more than 200 employees and is open 24 hours a day, 7 days a week. Saturdays and Sundays are Home Depot's busiest days. During plaintiff's employment, Bordelon informed the assistant managers and department supervisors that more employees were needed to work on Sundays to meet customer needs.
George was transferred to the position of greeter in the kitchen and bath department and began working there on February 8, 1999. In this position, which was new for the Harahan store, plaintiff worked with five certified designers who design kitchens and bathrooms for Home Depot customers. The greeter position was implemented in an effort to increase sales. The greeter was required to work during Home Depot's peak hours, which are evenings and weekends. The greeter's duties include answering the phone, assisting customers and "qualifying" customers by asking preliminary questions while the customers wait to meet with a designer. This allows the designers to spend more of their time designing. If a greeter was not working, a designer would have to perform the greeter's duties. George was the only greeter in the department. She knew before she accepted the position that she would be required to work on weekends.
Plaintiff was first scheduled to work on a Sunday as a greeter on July 25, 1999. However, she told her supervisor she could not work because she was going out of town and she did not work that day. She was scheduled to work the next Sunday, August 1, 1999, but she called in sick that day.
George was again scheduled to work the following Sunday, August 8, 1999. She decided to work instead on her day off, Saturday, August 7, 1999, so that she could make up her hours and not have to work on Sunday. There is a conflict in the evidence about whether plaintiff told Steib two days in advance of her intent and whether he either had the authority to or actually approved her request to change her schedule. Again, this conflict is immaterial to the issues raised by defendant's motion for summary judgment. Neither assistant store manager Burns nor store manager Bordelon knew of or approved plaintiff's schedule change before Saturday, August 7th.
Plaintiff's affidavit and the depositions of herself, Bordelon and Burns establish the following facts. When Burns learned that George was working on August 7th, he asked her to report to Bordelon's office, which she did. During that meeting, Bordelon asked George to explain why she was working on her day off. George said that she was working on Saturday to make up time because she would not work the next day, according to her Catholic religious belief that she could not work on Sundays.
Bordelon responded that she knew that Catholics could work on Sundays. George answered that she could not work on Sundays because her religion stated that she had to rest her mind and body on Sundays. Bordelon said she would be willing to accommodate plaintiffs need to go to church. She offered to schedule plaintiffs shifts around church services so that George could go to mass on Saturdays or Sundays, either in the morning or the evening. George again responded that she could not work at all on Sundays because of her religious beliefs. They did not discuss any other possible alternatives, such as George's transfer to another department or position, or trying to have her swap shifts with another employee. When Bordelon refused to allow plaintiff to have every Sunday off and plaintiff continued to refuse to work on Sundays, George was tired that day. Plaintiffs Exh. A, George's affidavit, ¶ 25; Defendant's Exh. A, George deposition at 232-35; Defendant's Exh. B, Bordelon deposition at 83-86, 119-20, 133-35; Defendant's Exh. C, Burns deposition at 33-37.
B. Title VII Standards
Title VII makes it unlawful for an employer to discriminate against an employee on the basis of her religion. 42 U.S.C. § 2000e-2 (a)(1), (2). "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. § 2000e(j).
Thus, if a prima facie case of religious discrimination is present, the burden shifts to defendant to show either that it has offered an alternative reasonable accommodation to resolve the conflict or that accommodating plaintiff's religious beliefs as requested would cause it an undue hardship. Bruff, 244 F.3d at 500.
"Accommodation can take place in two fundamental ways: (1) an employee can be accommodated in his or her current position by changing the working conditions, or (2) the employer can offer to let the employee transfer to another reasonably comparable position where conflicts are less likely to arise." Id. The Supreme Court has held that the employee also must be reasonable in seeking an accommodation: "bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee's religion and the exigencies of the employer's business." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986) (quotation omitted).
By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it "demonstrates that [it] is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship.Id. at 68 (ellipses in original) (emphasis added) (quoting 42 U.S.C. § 2000e(j); citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).
"[T]he extent of undue hardship on the employer's business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship." Id. at 68-69. "[A]n undue hardship exists, as a matter of law, when an employer incurs anything more than ade minimis cost to reasonably accommodate an employee's religious beliefs." Bruff, 244 F.3d at 500 (citing Hardison, 432 U.S. at 84);accord Philbrook, 479 U.S. at 67; Weber, 199 F.3d at 273.
Home Depot argues first that it offered plaintiff a reasonable accommodation by offering to schedule her work hours on Sundays around her church services and, alternatively, that allowing her to have Sundays off would cause it an undue hardship.
C. Home Depot Offered George a Reasonable Accommodation
As stated in Philbrook and Bruff, Home Depot need prove only that it offered George a reasonable accommodation to prevail on summary judgment. If defendant cannot prove that it offered George a reasonable accommodation, it may still prevail if it can prove that the accommodation she requested would cause it an undue hardship.
Because Title VII does not define reasonable accommodation, "[t]he determination of whether an accommodation is reasonable in a particular case must be made in the context of the unique facts and circumstances of that case." Rodriguez v. City of Chicago, 156 F.3d 771, 776 n. 7 (7th Cir. 1998); accord Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995); Riselay v. Secretary of Health Human Servs., No. 90-1779, 1991 WL 44319, at *5 (6th Cir. Apr. 2, 1991).
Plaintiff argues that Home Depot's suggested accommodation, to schedule her work hours on Sundays around church services, was no accommodation at all and that the only reasonable accommodation Home Depot could have offered was to accommodate fully her belief that she could not work on Sundays. This argument is not supported by the law.
Beginning with the Supreme Court's decision in Hardison in 1977, federal courts have consistently held that an employer need not accommodate fully a plaintiff's religious belief that she cannot work on a particular day. The facts of Hardison are very similar to the instant case. Hardison's religion prohibited him from working on Saturdays. He was employed by Transworld Airlines ("TWA") in a job that required him to work on weekends. He was the only employee in his shift available to work that job on that shift. For TWA to fill the position with a supervisor or an employee from another area would have led to understaffing in another area, and to employ someone who was not regularly assigned to work on Saturdays would have required TWA to pay overtime wages. TWA was unable to find anyone who wanted to exchange shifts with Hardison and was unable to find another job for him within the company. Thus, TWA rejected Hardison's proposal that he work four days a week and be off on Saturdays. Hardison, 432 U.S. at 68-70.
The Supreme Court held that TWA had made reasonable efforts to accommodate plaintiff s religion and that it was not required to allow him to take Saturdays off. The Court explained:
Any employer who, like TWA, conducts an around-the-clock operation is presented with the choice of allocating work schedules either in accordance with the preferences of its employees or by involuntary assignment. . . . Whenever there are not enough employees who choose to work a particular shift, however, some employees must be assigned to that shift even though it is not their first choice. . . . [T]o give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.
Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. . . . It would be anomalous to conclude that by "reasonable accommodation Congress meant that an employer must deny the shift and job preference of some employees . . . in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.Id. at 80-81.
As noted above, the employee must cooperate in the search for an acceptable reconciliation. "Title VII does not require an employer to accommodate such an inflexible position" as allowing the employee to determine what tasks she will and will not perform, Bruff, 244 F.3d at 500; Rodriguez, 156 F.3d at 777; what clothing or emblems she may wear that are contrary to the employer's dress policy or upsetting to other employees, Daniels v. City of Arlington, 246 F.3d 500, 506 (5th Cir.),cert. denied, 122 S.Ct. 347 (2001); Wilson v. U.S. West Communications, 58 F.3d 1337, 1341 (8th Cir. 1995); or what days she will and will not work. Hardison, 432 U.S. at 80-81; Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993); Eversley v. MBank Dallas, 843 F.2d 172, 175-76 (5th Cir. 1988). "Title VII does not restrict an employer to only those means. of accommodation that are preferred by the employee. Once the [employer] establishes that it offered [plaintiff] a reasonable accommodation, even if that alternative is not her preference, [it has], as a matter of law, satisfied [its] obligation under Title VII." Bruff, 244 F.3d at 501 (citing Philbrook, 479 U.S. at 68; other citations omitted); see also Rodriguez, 156 F.3d at 777 (Title VII requires only reasonable accommodation, "not satisfaction of an employee's every desire") (quotation omitted).
In her affidavit, Plaintiff's Exhibit A, George asserts that, in addition to attending mass, she participates in a church group on Sundays that performs missionary work, participates in holy hours at church, goes to nursing homes, visits the sick, has prayer vigils and helps other people. She believes Sunday is a day of religious obligation, rest, prayer and family time, and this religious belief precludes her from working on Sundays. The testimony establishes that, on August 7, 1999, Bordelon refused to allow George to take every Sunday off and offered to schedule plaintiff's Saturday or Sunday hours around her attendance at mass, but George refused to work at all on Sundays.
Allowing George to dictate the days when she would work is not a reasonable accommodation. "A reasonable accommodation need not be on the employee's terms only." Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982); accord Rodriguez, 156 F.3d at 777; Wright, 2 F.3d at 217. It would not have been reasonable, as plaintiff now suggests in her brief, for Home Depot to allow her to use vacation time or to take leave without pay so that she could have every Sunday off. Home Depot made a business judgment that it needed a greeter to work on Sundays in its effort to increase sales on its second busiest day of the week and to permit the designers to spend the majority of their time designing. The court "will not substitute [its] judgment . . . for the employer's business judgment." Scott v. University of Miss., 148 F.3d 493, 509-10 (5th Cir. 1998) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (antidiscrimination laws "`cannot protect . . . workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated'")).
Because George was the only greeter, it was not a feasible option to exchange shifts with another greeter. In addition, Home Depot is not obligated to require other employees to exchange shifts with plaintiff because that would impinge on those other employees' own religious and non-religious shift preferences. Hardison, 432 U.S. at 481; Wilson, 58 F.3d at 1342; Eversley, 843 F.2d at 175-76; Brener, 671 F.2d at 146-47.
Home Depot offered plaintiff a reasonable accommodation when it offered her flexible working hours on Sundays. Bordelon offered to schedule plaintiff's Saturday or Sunday hours to allow her to attend church services either in the morning or the evening. See EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.2 (d)(1)(ii) (options to accommodate conflicts between work schedules and religious practices include "creation of a flexible work schedule for individuals requesting accommodation;" e.g., "flexible arrival and departure times; floating or optional holidays; flexible work breaks; use of lunch time in exchange for early departure; staggered work hours; and permitting an employee to make up time lost due to the observance of religious practices."). George refused to accept the accommodation offered, refused to consider any accommodation except on her terms and therefore did not make a good faith effort to cooperate in the search for a resolution.Daniels, 246 F.3d at 505; Rodriguez, 156 F.3d at 776; Wright, 2 F.3d at 217; Brener, 671 F.2d at 146.
Home Depot was not obligated to search for other accommodations that were more favorable to plaintiff. "By providing at least one reasonable accommodation, the [defendant] discharged its obligation under Title VII." Rodriguez, 156 F.3d at 777; accord Bruff, 244 F.3d at 501 (citingPhilbrook, 479 U.S. at 68); Eversley, 843 F.2d at 175.
Because Home Depot offered George a reasonable accommodation, it need not prove that it could not offer such accommodation without undue hardship. For the sake of completeness, however, the court will address Home Depot's undue hardship argument.
D. Home Depot Would Have Suffered Undue Hardship from the Requested Accommodation___________________________________________________
The Supreme Court has made it clear "that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. . . . Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end."Philbrook, 479 U.S. at 68 (emphasis added). However, even if Home Depot offered no reasonable accommodation, it is entitled to summary judgment if it could not reasonably accommodate plaintiffs religious preference without suffering an undue hardship.
Home Depot argues alternatively that it could not have accommodated plaintiffs religious belief that she could not work on Sundays without suffering an undue hardship. "[A]n undue hardship exists, as a matter of law, when an employer incurs anything more than a de minimis cost to reasonably accommodate an employee's religious beliefs." Bruff, 244 F.3d at 500 (citing Hardison, 432 U.S. at 84); accord Philbrook, 479 U.S. at 67; Weber, 199 F.3d at 273. The record establishes that plaintiffs requested accommodation would have caused Home Depot undue hardship.
This case is similar to Weber, in which plaintiff was a long-haul truck driver for Roadway Express. His religious beliefs prevented him from making overnight runs with a female driver who was not his wife. When Weber requested that he be "skipped over" whenever an assignment came up with a female partner because of his beliefs, his supervisor told him that he must work with women drivers or not work at all. Weber was fired that day. Weber, 199 F.3d at 272.
Although Roadway had not offered Weber any reasonable accommodation, the Fifth Circuit affirmed summary judgment in defendant's favor because plaintiffs proposed accommodation would have created more than a de minimis expense. Id. at 274, 275.
The court found that
skipping over Weber to avoid pairing with a female driver may adversely affect other drivers. For example, the run Weber passes up might lead his substitute to accept a shorter run than she might otherwise, which provides less compensation and is therefore less valuable. Weber's substitute might also receive less rest and time off between runs than he or she might otherwise.Id. at 274.
Significantly, the Fifth Circuit held that "[t]he mere possibility of an adverse impact on co-workers as a result of "skipping overt is sufficient to constitute an undue hardship." Id. (citing Hardison, 432 U.S. at 81; Lee v. ABF Freight Sys., 22 F.3d 1019, 1023 (10th Cir. 1994); Cook v. Chrysler Corp., 981 F.2d 336, 338 (8th Cir. 1992) (hardship need not be quantifiable in economic terms); Eversley, 843 F.2d at 175; Brener, 671 F.2d at 141). The appeals court found that "Roadway's hypotheticals regarding the affects [sic] of accommodation on other workers are not too remote or unlikely to accurately reflect the cost of accommodation. . . . [F]ederal law does not requite Roadway to wait until it felt the effects of Weber's proposal by foregoing a run or skipping over a female driver." Id. at 275-76 (citing Hardison, 432 U.S. at 81;Beadle, 42 F.3d at 636; Favero v. Huntsville Indep. Sch. Dist., 939 F. Supp. 1281 (S.D. Tex. 1996)); see also Bruff, 244 F.3d at 501 ("Title VII does not requite an employer to actually incur accommodation costs before asserting that they are more than de minimis.").
In the instant case, Home Depot has established a business need for having plaintiff, the only greeter in the kitchen and bath department, work on Sundays, the second busiest day of the week. There is undisputed record evidence that lack of a greeter on Sundays would have required the designers to handle the duties otherwise delegated to the greeter, thus decreasing the efficiency of the department. Home Depot at times accommodated the personal preferences of plaintiff, such as allowing her to take certain days off to assist her mother, who was ill, and of other employees. However, these "secular exceptions to the assignment system would be and are only accommodated if business circumstances dictate. In contrast, [George's] accommodation would be inflexible. Therefore, whereas flexible secular exceptions are de minimis, the inflexible religious exception is not because it effects the scheduling preferences of other employees." Weber, 199 F.3d at 275.
Although defendant has presented no evidence that it actually experienced a business loss from the lack of a greeter on Sundays, the law requires no such evidence. Id. at 274. Adverse impacts undoubtedly would have occurred if Home Depot had denied the shift preferences or overloaded the schedules of the designers to accommodate George, including probable denial of other employees' religious and non-religious preferences and lowered workplace morale because of the favoritism shown to plaintiffs inflexible religious preference. Hardison, 432 U.S. at 84;Weber, 199 F.3d at 275; see also sniff, 244 F.3d at 501 (requiring another employee "to assume a disproportionate workload [to accommodate plaintiff] . . . is an undue hardship as a matter of law."); Stevenson v. Southport, Inc., No. 96-1671, 1997 WL 129389, at *4 (E.D. La. March 19, 1997) (Livaudais, J.) ("The fact that Southport was busy . . . indicates that it would be crucial to find employees who were willing to work all of their scheduled workdays. Stevenson's absence on Saturdays would have resulted in a cost in the efficiency of the operation which would be greater than de minimis.").
Home Depot has shown that it would incur more than de minimis hardship to accommodate George's request. Thus, plaintiff has failed to establish that Home Depot discriminated against her on the basis of her religion, and defendant is entitled to summary judgment in its favor as a matter of law.
For the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED, Record Doc. No. 28, and plaintiffs motion for summary judgment, Record Doc. No. 42, is DENIED. IT IS FURTHER ORDERED that defendant's motion in limine to exclude certain testimony and exhibits, Record Doc. No. 29, and plaintiffs motion to reconsider denial of her motion to compel Answer to Interrogatory No. 6, Record Doc. No. 39, are DISMISSED AS MOOT. Plaintiff must bear the costs of these proceedings. Fed.R.Civ.P. 54(d)(1).