George v. The Home Depot Inc ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-30026
    Summary Calendar
    TERESA N GEORGE
    Plaintiff - Appellant
    v.
    THE HOME DEPOT INCORPORATED
    Defendant - Appellee
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    No. 00-CV-2616-C
    September 27, 2002
    Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
    PER CURIAM:*
    Plaintiff-Appellant Teresa George appeals the district
    court's grant of summary judgment in favor of Defendant-Appellee
    The Home Depot Inc. on its defense to her claim of religious
    discrimination.   George also appeals the denial of her motion for
    summary judgment on her religious discrimination claim.   For the
    following reasons, we AFFIRM.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR. R.
    47.5.4.
    No. 02-30026
    -2-
    I.   FACTUAL AND PROCEDURAL HISTORY
    Teresa George ("George") was employed by The Home Depot,
    Inc. ("Home Depot") off and on from October 1996 to August 1999.
    She worked at a Home Depot in Atlanta, Georgia, then moved to New
    Orleans and began work at the Harahan, Louisiana store.    George
    started at the Harahan store as a cashier and then became a
    greeter in the kitchen and bath department.
    George was the only greeter in the kitchen and bath
    department.   The function of the greeter was to greet customers
    visiting the department, to suggest the customers meet with
    designers, and to schedule appointments with designers.    The
    designers in the department would then meet with customers
    individually to discuss their home improvement projects.
    George is a devout Catholic.   She attends mass daily and
    frequently participates in prayer vigils and religious service.
    In August or September of 1997, George determined that her
    religious beliefs preclude her from working at all on Sundays.
    George's job at Home Depot required that she often work on
    Sundays.1   The Harahan store was open twenty-four hours a day,
    seven days a week, and it was particularly busy on weekends.
    1
    George held a variety of positions at Home Depot, some
    of which required her to work on Sundays. At the Atlanta store,
    George worked as a greeter in the kitchen cabinet department,
    which required Sunday work, then became a project manager in the
    paint department, which apparently did not. At the Harahan
    store, George worked as a cashier and a greeter; both positions
    required her to work on Sundays.
    No. 02-30026
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    George testifies that she told managers at Home Depot on
    several occasions that she could not work on Sundays.    She says
    that she told Brian Starkes and Les Strieb, her direct
    supervisors at the Atlanta and Harahan stores, as well as Harahan
    store co-manager Dave Emmel, assistant store manager Steve Burns,
    and kitchen and bath department manager Gregory Braxton.    Home
    Depot contends George agreed to work Sundays as part of her
    transfer to the kitchen and bath department.    Further, Starkes
    and Burns specifically dispute George's claim that she told them
    she could not work on Sundays, and Bordelon states that the first
    time she learned George could not work on Sundays due to her
    religious beliefs was on George's last day.
    Prior to the change in her beliefs in August 1997, George
    did work at Home Depot on Sundays.    After August 1997, George did
    work on some Sundays.   George contends that she only worked
    Sundays as a cashier on an emergency basis.    George did not work
    on any Sundays after her transfer to the kitchen and bath
    department.   She was not scheduled to work on Sundays for her
    first several weeks as a greeter.    After she was scheduled on
    Sundays, George took one Sunday off to go out of town, then
    called in sick the next Sunday.
    George's employment at Home Depot ended on August 7, 1999.
    On that day, George decided to work Saturday instead of Sunday
    because of her beliefs.   Store co-manager Sharon Bordelon met
    No. 02-30026
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    with George to discuss her refusal to work Sundays.       Bordelon
    suggested that George work before or after attending mass on
    Sundays.       George replied that she could not work on Sundays at
    all.       George claims that Bordelon then terminated her employment;
    Home Depot contends that George resigned.
    George filed suit in federal district court, alleging that
    her discharge by Home Depot violates Title VII of the Civil
    Rights Act of 1964, 42 U.S.C. § 2000e(j) (2000), and the
    Louisiana Employment Discrimination Law, LA. REV. STAT. ANN. §
    23:301-314, :332-333 (West 1998).       On cross-motions for summary
    judgment, the district court denied George's motion for summary
    judgment on her claim of religious discrimination.       The district
    court found genuine issues of material fact as to whether George
    had a bona fide religious belief, whether she informed Home Depot
    of that belief, and whether she was discharged because she failed
    to comply with an employment requirement conflicting with the
    belief.       The district court then granted Home Depot's motion for
    summary judgment, finding no genuine issue of material fact as to
    Home Depot's defenses.       The court determined that Home Depot
    offered George a reasonable accommodation and, in the
    alternative, that accommodation would subject Home Depot to undue
    hardship.2      George appeals the denial of her motion for summary
    2
    The amici argue that the district court should not have
    addressed whether any accommodation would impose an undue
    hardship because it found that Home Depot provided a reasonable
    No. 02-30026
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    judgment and the grant of Home Depot's motion for summary
    judgment.
    II.     STANDARD OF REVIEW
    This court reviews a grant or denial of summary judgment de
    novo, applying the same standards as the district court.      Daniels
    v. City of Arlington, 
    246 F.3d 500
    , 502 (5th Cir.), cert. denied,
    
    122 S. Ct. 347
    (2001).     Summary judgment should be granted if
    there is no genuine issue of material fact for trial and the
    moving party is entitled to judgment as a matter of law.      See
    FED. R. CIV. P. 56(c).
    In determining if there is a genuine issue of material fact,
    the court reviews the evidence in the light most favorable to the
    non-moving party.   
    Daniels, 246 F.3d at 502
    .     The court gives
    weight to evidence favoring the non-moving party and evidence
    supporting the moving party that is uncontradicted and
    unimpeached.   See 
    Daniels, 246 F.3d at 502
    ; see also Reeves v.
    Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 150-51 (2000).
    III.   DISCUSSION
    Title VII of the Civil Rights Act of 1964 prohibits an
    employer from discriminating on the basis of religion.      See 42
    accommodation. The two arguments made by Home Depot are
    alternative defenses in a Title VII religious discrimination
    action. See Bruff v. N. Miss. Health Svcs., Inc., 
    244 F.3d 495
    ,
    499-500 (5th Cir.), cert. denied, 
    122 S. Ct. 348
    (2001). Thus,
    the amici's contention is without merit.
    No. 02-30026
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    U.S.C. § 2000e(j) (2000).   The Louisiana Employment
    Discrimination Law parallels Title VII.     See LA. REV. STAT. ANN. §
    23:301-314, :332-333 (West 1998).   Since the Louisiana employment
    discrimination statute is substantively similar to Title VII,
    Louisiana courts routinely interpret the Louisiana statute using
    federal law.   See, e.g., Nichols v. Lewis Grocer, 
    138 F.3d 563
    ,
    566 (5th Cir. 1998); Hicks v. Cent. La. Elec. Co., 
    712 So. 2d 656
    , 658 (La. Ct. App. 1998).
    A.   George's Motion for Summary Judgment
    To establish a prima facie case of religious discrimination,
    George must show that: (1) she has 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 conflicting employment requirement.
    
    Daniels, 246 F.3d at 506
    ; Bruff v. N. Miss. Health Svcs., Inc.,
    
    244 F.3d 495
    , 499 n.9 (5th Cir.), cert. denied, 
    122 S. Ct. 348
    (2001).   In this case, Home Depot has demonstrated a genuine
    issue of material fact on each of the three elements.
    There is a genuine issue of material fact as to whether
    George has a bona fide religious belief that precludes her from
    working on Sundays.   George has testified that she believes being
    a devout Catholic means that she cannot work on Sunday.      George
    has also provided testimony of two Catholic priests to this
    effect.   Home Depot disputes that George's belief is bona fide,
    No. 02-30026
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    citing her decision to work on some Sundays and testimony that
    some Catholics do not believe they cannot work on Sundays.    Home
    Depot also cites evidence that George's belief arose in response
    to her learning of a lawsuit between Home Depot and another
    individual whose religious belief precluded him from working on
    Sundays.
    There is also a genuine factual issue as to whether George
    informed Home Depot of her religious belief.    George testifies
    that she told store co-manager Emmel that she could not work on
    Sundays when she began her employment at the Harahan store.
    After her transfer to the kitchen and bath department, George
    contends that she told her immediate supervisor, the kitchen and
    bath department manager, and the assistant store manager that she
    could not work on Sundays.    Home Depot contends that it first
    learned of George's religious belief during George's meeting with
    Bordelon on August 7, 1999.    In support, Home Depot cites several
    employees' denials that George told them of her beliefs and
    evidence that George agreed to work Sundays as part of her
    transfer to the kitchen and bath department.
    Finally, there is a genuine issue of material fact as to
    whether George was discharged because of her failure to work on
    Sundays.   As a result of the August 7 meeting, George contends
    that Bordelon terminated her employment; Home Depot contends that
    George resigned.
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    Thus, the district court properly denied George's motion for
    summary judgment.
    B.   Home Depot's Motion for Summary Judgment
    Home Depot argues that summary judgment in its favor is
    appropriate because even if George makes out her prima facie
    case, there is no genuine issue of material fact as to its
    defenses.   Home Depot will have a valid defense if it shows
    either: (1) that it offered George a reasonable accommodation or
    (2) that accommodating George's beliefs would subject Home Depot
    to undue hardship.   
    Bruff, 244 F.3d at 500
    ; see also 42 U.S.C. §
    2000e(j) (2000) (providing a defense if 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").    Home
    Depot has shown that accommodating George's request would present
    an undue hardship; George has not provided sufficient evidence in
    rebuttal to create a genuine factual dispute on this issue.    See
    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    ,
    586-87 (1986) (noting that a genuine issue of material fact
    exists when there is evidence sufficient for a rational trier of
    fact to find for the non-moving party); see also FED. R. CIV. P.
    56(e) (non-moving party must come forward with "specific facts
    showing that there is a genuine issue for trial").   Because we
    affirm the district court's judgment on the grounds that
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    accommodation would result in an undue hardship, we need not
    address whether Home Depot offered George a reasonable
    accommodation.
    An undue hardship exists when an employer incurs anything
    more than a de minimus cost to accommodate an employee's beliefs.
    Trans World Airlines, Inc. v. Hardison, 
    432 U.S. 63
    , 84 (1977);
    see also 
    Bruff, 244 F.3d at 500
    .   While the determination of what
    constitutes an undue hardship is case-specific, numerous cases
    provide guidance.   In Hardison, for example, the Supreme Court
    held that requiring an employer to accommodate an employee's
    request not to work on his Sabbath constituted an undue burden
    because it would either leave the employer short-staffed on
    weekends or require it to hire additional employees to fill in.
    
    See 432 U.S. at 84-85
    .   The Hardison Court noted that even if
    accommodating one employee would not be a significant burden, the
    likelihood that other employees would request similar
    accommodation could result in undue hardship.   See 
    id. at 84
    n.15.
    The Fifth Circuit has similarly found that a religious
    accommodation that requires other employees to take on additional
    duties or change their schedules presents an undue hardship.
    See, e.g., 
    Bruff, 244 F.3d at 501
    (finding that accommodation
    would result in undue hardship because it would require other
    employees to assume a disproportionate workload); Weber v.
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    Roadway Express, Inc., 
    199 F.3d 270
    , 274 (5th Cir. 2000) ("The
    mere possibility of an adverse impact on co-workers . . . is
    sufficient to constitute an undue hardship."); Eversley v. MBank
    Dallas, 
    843 F.2d 172
    , 176 (5th Cir. 1988) (determining it would
    be an undue hardship on an employer to require employees to
    switch shifts).     The Fifth Circuit has further noted that an
    employer need not actually incur costs before claiming that an
    accommodation would result in costs that are more than de
    minimus.     
    Bruff, 244 F.3d at 501
    .
    Home Depot presents ample evidence that allowing George
    every Sunday off would result in an undue hardship.     The kitchen
    and bath department was particularly busy on weekends and the
    greeter position was specifically created to provide more
    customer contact and take pressure off the designers during peak
    times.     George was the only greeter in that department.
    Accommodating George would require Home Depot to either do
    without a greeter on Sundays or hire an additional employee to
    fill George's position on Sundays; both options would impose an
    undue hardship on Home Depot.     See 
    Hardison, 432 U.S. at 84-85
    (finding that the options of either leaving TWA short-staffed or
    requiring TWA to hire additional employees both presented an
    undue hardship).     Not having a greeter during peak times would
    place additional burdens on the designers, hampering their
    efficiency.     See Howard v. Haverty Furniture Cos., 
    615 F.2d 203
    ,
    No. 02-30026
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    206 (5th Cir. 1980) (requiring other employees to perform
    plaintiff's job was an undue hardship).    Finally, Home Depot
    notes that many other employees in its large workforce could
    request similar accommodation, thus amplifying the hardship that
    accommodating George would impose on it.    This argument parallels
    the concern in Hardison, where the Court found that the
    likelihood that TWA would have to give other employees Saturdays
    or Sundays off for religious observance if it accommodated
    Hardison added to TWA's hardship.   See 
    Hardison, 432 U.S. at 84
    n.15.
    George contends that the kitchen and bath department could
    function without a greeter on Sundays, as it did before the
    Harahan Home Depot created the greeter position.    George suggests
    that she did not need to work Sundays because other employees at
    the Harahan store did not work Sundays.    Home Depot provided
    evidence that the greeter position was created to ensure customer
    contact at peak times, which included weekends.    Home Depot's
    evidence that having a greeter on weekends is important to its
    business is sufficient to show that going without a greeter would
    constitute an undue hardship.   See Brener v. Diagnostic Ctr.
    Hosp., 
    671 F.2d 141
    , 146 (5th Cir. 1982) (rejecting a
    pharmacist's suggestion that a hospital could do without him on
    Saturdays without facing an undue hardship).
    George also suggests that another employee might be able to
    No. 02-30026
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    work in her place on weekends.    George claims that some of the
    designers could function as greeters on Sundays.    Home Depot
    contends that the greeter position was created to free designers
    to consult with customers on their projects; not having a greeter
    on Sundays would thwart the purpose of the position.    Further,
    requiring the designers to take on additional duties demonstrates
    an undue burden.   See 
    Bruff, 244 F.3d at 501
    (requiring another
    employee "to assume a disproportionate workload [to accommodate
    the plaintiff] . . . is an undue hardship as a matter of law").
    Finally, George has not shown that any employees other than the
    designers could or would have traded shifts to fill her position
    on Sundays.   Even viewing the evidence in the light most
    favorable to her, George has not created a genuine issue of
    material fact suggesting that Home Depot could accommodate her
    request without incurring significant costs.
    Thus, the district court properly granted summary judgment
    in favor of Home Depot on its claim of undue hardship.
    IV.     CONCLUSION
    For the foregoing reasons, the district court's grant of
    Defendant's motion for summary judgment and its denial of
    Plaintiff's motion for summary judgment are AFFIRMED.