Reed v. Intl. Union, UAW, No. 07-2505 (6th Cir. May 7, 2009); Della Ferra v. Potter, No. 08-3817 (3d Cir. May 4, 2009)

| May 6, 2009 | Daily Developments in EEO Law |

A Title VII religious accommodation claim — by a conscientious objector to paying union dues — results in three separate opinions and no clarity in the Sixth Circuit. In the Third Circuit, an unpublished opinion appears confused over the difference between “opposition” and “participation” in the anti-retaliation sections of Title VII and the ADEA.

Reed v. Int’l Union, UAW, No. 07-2505 (6th Cir. May 7, 2009): The UAW Constitution offers an escape valve for individuals who have bona fide religious objections to joining a union —

“The UAW Constitution grants both members and non-member agency fee payers ‘the
right to object to the expenditure of a portion of his/her dues money for activities or causes
primarily political in nature’ and to receive a rebate for that portion. UAW and AM General
also are parties to a letter agreement that allows any employee with a bona fide religious
objection to joining or supporting a labor union to satisfy his union security obligation by
making a payment equal to full membership dues to one of three charities mutually
designated by UAW and AM General.”

The plaintiff in this case made a bid under this provision to pay his share of dues to a charity. 

“UAW instructed Reed to pay $439.44, the amount of full union dues that had accrued since February 1, 2005,[fn.1] to one of the three charities selected by UAW and AM General. UAW further explained that upon Reed’s delivering to UAW a receipt showing full payment to an approved charity, the union would refund him $339.62, the amount he had paid in agency fees from February 2005 through November 2005. Reed paid $439.44 to Riley’s Children Foundation, one of the designated charities, and UAW refunded him $339.62. This arrangement caused Reed to pay approximately $100 more to charity as a religious objector than he had paid to UAW in agency fees as an objecting non-member. Reed’s ongoing union security obligation requires him to make a monthly charity payment approximately 22% greater than what he would pay UAW as an objecting member or non-member.”

It was over this $100, and a little more each year going forward, that the plaintiff filed suit.  The district court granted summary judgment, finding that the employee failed to make out a prima facie case.  In the Sixth Circuit, a prima facie case for religious accommodation is that the employee “holds a sincere religious belief that conflicts with an employment requirement,”  “has informed the employer about the conflict,” and was “discharged or disciplined for failing to comply with the conflicting employment requirement.” Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007) (quoting Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987)).

On appeal, the plaintiff argues that this prima facie standard ought not apply where the employer acknowledges a need to accommodate, as here, but fails to carry it out reasonably.  The court’s opinion, signed by Judge Batchelder, disagrees.  Affirming summary judgment, the court states “Reed cannot avoid this requirement by insisting that the only controversy here concerns the reasonableness – not the necessity – of his accommodation. Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation.” 

The plaintiff argues alternatively that he need only make out a “adverse employment action,” not specifically discharge or discipline.  Judge Batchelder writes:

“[B]ecause we hold that the specific accommodation Reed challenges here does not rise to the level of an adverse employment action, we are not presented with the issue of whether a plaintiff can proceed on a showing of an employment action that is ‘adverse’ but is not a form of ‘discharge or discipline.’ Other than the accommodation itself, the reasonableness of which he challenges, Reed cannot point to any action by UAW that has adversely affected his employment. And whatever ‘discharge or discipline’ or ‘adverse employment action’ may mean in other contexts, a plaintiff does not carry his burden merely by showing that he has lost some amount of pay as a result of a proffered accommodation.”

Judge Guy, concurring in the judgment in a separate opinion, sidesteps the prima-facie standard issue and, following the plaintiff’s lead, cuts right to the reasonableness of the accommodation.  “Apart from the questions raised concerning an appropriate prima facie test for such a claim by the lead and dissenting opinions in this case, I agree with the district court that the UAW’s accommodation requiring substitute payment of the full amount of dues to a charity constituted a reasonable and nondiscriminatory accommodation of plaintiff’s religious beliefs.”  Judge Guy observes that “Reed concedes that allowing him to make substituted charitable contributions, even in the full amount of the dues, eliminated the conflict between the union security clause and his religious beliefs. Reed actually argues that the accommodation was not reasonable because it was discriminatory . . . .”  But Judge Guy would hold that the differential in what Reed paid was a consequence of his own choice:  instead of opting-out of membership (as allowed under Commc’n Workers of Am. v. Beck, 487 U.S. 735, 762-63 (1988)), and only paying that portion of dues expended on “core” representational activities (78.29% of the full dues), he elected to pay the full due amount to a charity.

In dissent, Judge McKeague would hold that (1) any adverse action, including the modest increase in fees levied on Reed, triggers an accommodation claim, and (2) a fact-finder could conclude that the elevated fee was not reasonable.  On the latter point, the dissent writes “If a union cannot charge an objecting nonmember more than the Beck amount, it seems to me that there is no basis for offering an accommodation in excess of that amount. As Reed is an objecting nonmember, it seems to me that a reasonable accommodation should be based on the amount that the union can require from objecting nonmembers under Beck.”  Because the higher fee charged Reed was discriminatory, it could not perforce be reasonable, by the dissent’s lights anyway.

So there you go, a nice spat over a few hundred bucks and some mile-high principles.  I can only hope that it winds up re-argued en banc to the full Court.

Della Ferra v. Potter, No. 08-3817 (3d Cir. May 4, 2009):  A white male letter carrier, age 46, is terminated on the grounds of repeated failure to complete his appointed rounds.  He contends that the real reason was his race, sex and age (he was replaced by an African-American woman, who was older than he, so the age case already sounds pretty shaky).  He also contend that the termination was in retaliation for filing complaints internally with his union and with the EEOC; in particular, he “filed four EEOC complaints alleging discrimination and retaliation: October 3, 2000, May 29, 2001, January 7, 2002, and August 3, 2003.”

The district court granted summary judgment, holding that the employee abandoned the discrimination claims, failed to state a prima facie case of discrimination or could not establish that the reason given was a pretext.  The panel affirms as to the discrimination claims on the same grounds. 

As for the retaliation claims, the panel holds:

“We conclude that Appellant’s history of filing grievances through his union and complaints through the EEOC do not constitute ‘protected activity’ within the meaning of Title VII. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam) (holding that standard requires that reasonable person believe conduct complained of violated Title VII); Barber v. CSX Distribution Servs., 68 F.3d 694, 701- 02 (3d Cir. 1995) (explaining that general complaint about unfair treatment is insufficient to establish ‘protected activity’ under Title VII). In so holding, we express no opinion on the merits of these grievances and EEOC complaints. We recognize that Appellant has alleged a long history of what he perceives to be differential treatment by his supervisors. We do not discount this information; however, it is insufficient to satisfy the requirements of ‘protected activity’ under Title VII.”

The panel opinion, summary as it is, fails to clarify whether the alleged protected activity was (1) “opposition” to discriminatory practices or (2) “participation” in a covered procedure.  The distinction is important.  True enough for “opposition” purposes, the Breeden case affirms that the employee must manifest a reasonable belief that the employer is engaged in discrimination, harassment, etc., even if ultimately mistaken.  But the same is not necessarily true of “participation.”  The protected activity — the filing of an EEOC complaint or charge — is incontestable in this case. The panel may doubt that the charges have merit, but it is far from settled law that “participation” cases must also meet the same “reasonableness” standard as “opposition” cases. The protection of “participation” in EEOC charge-filing is deemed fairly absolute, even if the charged conduct turns out not to be discrimination at all.  Of course, courts also generally hold that a bad-faith filing of a false charge, or a charge that on its face does not fall within EEOC jurisdiction (sexual orientation, for instance) may not be protected, but the panel opinion does not say anything about that.  So it’s a bit of a puzzle.

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