Stephanie M. Bush v. Regis Corporation ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 03, 2007
No. 07-12690 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00345-CV-4-WS-WCS
STEPHANIE M. BUSH,
Plaintiff-Appellant,
versus
REGIS CORPORATION,
d.b.a. Cost Cutters,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 3, 2007)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se appellant Stephanie Bush appeals the district court’s order granting
summary judgment in favor of Regis Corporation in her religious discrimination
and retaliation civil action. After a thorough review of the record, we affirm.
Bush and her family were Jehovah’s Witnesses who attended religious
services on Thursday evenings and Sundays. Their faith also required that they
perform field service, which they preferred to do as a family on Sunday afternoons.
For several years, Bush was employed at a hair salon, where she was able to work
only the day shift in order to spend evenings with her daughter. And she did not
work any Sunday shifts. In 2003, Regis purchased the hair salon in which Bush
worked and started to require employees to work some evenings and every other
Sunday. Bush was not required to work Thursday evenings. Bush also requested a
religious accommodation to excuse her from the Sunday shift; Regis permitted
Bush to begin her shift after her religious service ended. Bush worked this
schedule for several months until her church changed the time of its service. At
that point, Regis excused Bush from the Sunday shift altogether. In addition,
Regis permitted Bush time off to attend religious conferences and allowed her to
swap shifts to fit her religious activities.
In March 2005, Bush left work before the end of her shift without
permission and received a written warning. In May, she filed a discrimination
charge alleging religious discrimination. Later that month, as the result of a
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complaint from another employee, Regis altered the weekend shift schedule to
require employees like Bush who did not work on Sunday to work the Saturday
night shift. Bush was not the only employee affected by this policy. In June 2005,
Bush received another written warning after she engaged in a confrontation with a
customer. Bush filed a second discrimination charge alleging retaliation and
requested a transfer to another store. She then turned in her keys while awaiting
the transfer, which ultimately fell through because there were no positions
available at other salons for the shifts Bush was willing to work. Regis offered
Bush her former position, but she declined. This civil action followed.
The district court granted summary judgment on the religious discrimination
claim, assuming that Bush satisfied a prima facie showing of discrimination, but
finding that Regis had offered a reasonable accommodation. The court granted
summary judgment on the retaliation claim because Bush did not suffer an adverse
action, but it also found that even if she did, Regis had legitimate non-
discriminatory reasons for its actions. Bush now appeals.
We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to Bush. Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th
Cir. 2002).
A. Discrimination
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Title VII prohibits an employer from discriminating against an employee on
the basis of, inter alia, religion. 42 U.S.C. § 2000e-2(a)(1); see also Fla. Stat. Ann.
§ 760.10(1)(a) (addressing religious discrimination under the FCRA). Title VII
defines the term “religion” to include “all aspects of religious observance and
practice, as well as belief.” 42 U.S.C. § 2000e(j). “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.’” Beadle v. City of Tampa, 42 F.3d 633, 636
(11th Cir. 1995) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68, 107
S. Ct. 367, 372, 93 L. Ed. 2d 305 (1986) and 42 U.S.C. § 2000e(j)).
Assuming, as the district court did, that Bush established a prima facie case
of discrimination based on a failure to accommodate religious beliefs, we conclude
that summary judgment was proper because Regis offered a reasonable
accommodation.
The phrase “reasonable accommodation” is not defined and turns on the
facts and circumstances of the case. Beadle v. City of Tampa, 42 F.3d at 636
(citations omitted). The Supreme Court has stated that compliance with Title VII
does not require an employer to give an employee a choice among several
accommodations; nor is the employer required to demonstrate that alternative
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accommodations proposed by the employee constitute undue hardship. Ansonia
Bd. of Educ., 479 U.S. at 68.
Here, Regis offered Bush a reasonable accommodation. When it required
her to cover shifts every other Sunday, it started the shift after her religious
services had concluded. And as soon as the services changed times, Regis gave
Bush Sundays off to accommodate the services. In addition, Regis permitted Bush
to swap shifts to allow her to attend religious conventions. See Beadle v.
Hillsborough County Sheriff’s Dep’t, 29 F.3d at 593 (approving of the use of shift
swaps to accommodate an employee).
Bush argues that the Sunday shift prevented her from doing field service
with her family, which constituted a bona fide religious belief. The record,
however, indicates that field service was not required to be performed on Sundays;
rather, that was the day Bush and her family wished to perform field service. An
employee has a duty to make a good faith attempt to accommodate her religious
needs through means offered by the employer. Beadle, 29 F.3d at 593. In this
case, it does not appear that Bush made any such effort. Accordingly, the district
court did not err in granting summary judgment on this claim.
2. Retaliation
Title VII prohibits retaliation by an employer against an applicant because
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the applicant has opposed an unlawful employment practice or made a charge of
discrimination. 42 U.S.C. § 2000e-3(a). A plaintiff may establish her case using
the burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See EEOC v. Joe’s
Stone Crabs, Inc., 296 F.3d 1265, 1272-73 (11th Cir. 2002). Under this
framework, the plaintiff can establish a prima facie case by showing that (1) she
engaged in statutorily protected expression, (2) she suffered an adverse
employment action,1 and (3) there was some causal relation between the two
events. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
To establish the second prong, the employee must show that “a reasonable
employee would have found the challenged action materially adverse.” Burlington
N. & Santa Fe Ry. Co., 126 S. Ct. at 2415. In other words, the materially adverse
employment action must discourage a reasonable employee from making or
supporting a charge of discrimination. Id.
Upon review, we conclude that the district court properly granted summary
judgment on this claim because Bush failed to establish that she suffered an
adverse action. None of the instances Bush identified rise to the level of an
1
In Burlington N. & Santa Fe Ry. Co. v. White, --- U.S. ----, 126 S. Ct. 2405, 165 L. Ed. 2d
345 (2006), the Supreme Court identified this second prong as “a materially adverse employment
action.”
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adverse action because none would have discouraged a reasonable employee from
making the discrimination charge. In fact, according to the evidence presented,
none of these instances deterred Bush from filing her complaint.
Even if Bush established a prima facie case, Regis proffered legitimate
nondiscriminatory reasons, which Bush has not argued are a pretext for
discrimination. Accordingly, summary judgment was proper and we AFFIRM.
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