Goldmeier v. Allstate Ins Co ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
ELECTRONIC CITATION: 2003 FED App. 0246P (6th Cir.)File Name: 03a0246p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Tony C. Merry, PALMER, VOLKEMA &
FOR THE SIXTH CIRCUIT THOMAS, Columbus, Ohio, for Appellants. Jon L.
_________________ Fleischaker, DINSMORE & SHOHL, Louisville, Kentucky,
for Appellee. ON BRIEF: Tony C. Merry, PALMER,
VOLKEMA & THOMAS, Columbus, Ohio, for Appellants.
DAVID A. GOLDMEIER and X Jon L. Fleischaker, DINSMORE & SHOHL, Louisville,
TERRY C. GOLDMEIER, - Kentucky, Jerome C. Tinianow, Columbus, Ohio, for
Appellee.
Plaintiffs-Appellants, -
- No. 01-3888
- _________________
v. -
- OPINION
> _________________
ALLSTATE INSURANCE ,
COMPANY , - BOGGS, Circuit Judge. Plaintiffs Terry C. and David A.
Defendant-Appellee. - Goldmeier (the “Goldmeiers”) appeal the district court’s grant
N of summary judgment to defendant Allstate Insurance
Company (“Allstate”), their former employer, in their action
Appeal from the United States District Court for religious discrimination, in violation of both federal and
for the Southern District of Ohio at Columbus. Ohio state law. The Goldmeiers, husband and wife, are
No. 99-01091—Norah McCann King, Magistrate Judge. Sabbath-observant Orthodox Jews. They had resigned their
positions as insurance agents with Allstate after the company
Argued: March 25, 2003 announced plans to require offices to remain open on Friday
evenings and Saturday mornings. Because they had not
Decided and Filed: July 24, 2003 suffered discipline or discharge over this conflict, but instead
resigned prior to the effectiveness of the new policy, the
Before: BOGGS and SILER, Circuit Judges; and STEEH, United States District Court for the Southern District of Ohio
District Judge.* dismissed their complaints for failure to make a prima facie
case. We affirm.
I
The Goldmeiers began working as Allstate insurance agents
in the late eighties. They ran an Allstate office first in
*
The Honorab le George C. Steeh, United States District Judge for the Bexley, Ohio, and later in Lewis Center, Ohio. While the
Eastern District of Michigan, sitting by designation.
1
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 3 4 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
Goldmeiers had a great deal of discretion in how they ran years. Moreover, the Goldmeiers would have been
their own offices, including allocation of administrative responsible for the performance of the office even in their
expenditures, it is undisputed that they were not independent absence and they “did not want to trust [their] financial
contractors, but employees of Allstate. The Goldmeiers are security to a vendor possibly finding someone to work while
also Sabbath-observant Orthodox Jews and as such followed [they] weren’t there.” Hence the Goldmeiers did not
a religious prohibition against working from sundown Friday investigate this option further.
until sundown Saturday. Until 1998, they accommodated
their religious and work requirements by closing their office On November 16, 1998, the Goldmeiers informed Allstate
earlier on Fridays in the winter months when the sun set that they considered themselves to be constructively
before regular closing hours and always keeping it closed on discharged and resigned their positions. As the Goldmeiers
Saturdays and Jewish holidays. In September 1998, Allstate conceded at oral argument, this resignation came as a surprise
announced new Service Availability Standards (“SAS”). The to Allstate. In response, Allstate now offered to allow the
SAS required that, beginning on January 1, 1999, all offices Goldmeiers to observe the Sabbath but to work on Sundays
had to remain open until 6 PM on Fridays and, beginning on instead, an offer the Goldmeiers had earlier made, but which
July 1, 1999, from 9 AM to 1 PM on Saturdays. While an had then been rejected by Allstate. The Goldmeiers now
open office did not explicitly require the Goldmeiers’ rejected this compromise because Allstate did not make the
presence, it did require the presence of a licensed insurance offer in writing and the Goldmeiers had, even before
agent at all times and the Goldmeiers were the only such tendering their resignations, accepted new positions with
agents in their office. Allstate employees were advised that another employer. On January 1, 1999, the new Allstate
failure to comply with the new policy could lead to discipline, policy went into effect. The first Friday after the SAS went
up to and including discharge. into effect that also was a regular working day was January 8,
1999, fifty-three days after the Goldmeiers resigned.
In response, the Goldmeiers informed Allstate that the new
policy conflicted with the demands of their religion and On October 20, 1999, the Goldmeiers filed a complaint
initiated discussions in order to find an accommodation. against Allstate in federal district court. They alleged
Initially, Allstate indicated that there would be no exceptions employment discrimination on religious grounds, in violation
to the office hours policy. Allstate suggested that the of 42 U.S.C. § 2000e, a parallel state law claim, under Ohio
Goldmeiers could hire a licensed insurance agent to cover the Rev. Code § 4112, and discharge contrary to the public policy
hours they would not be present. Such part-time help had to embodied in § 4112. On July 13, 2001, the district court
be provided by an Allstate-approved list of “vendors,” but granted summary judgment to Allstate on the grounds that the
could be funded out of the office expense allowance that the Goldmeiers had not suffered an adverse employment action
company allocated to each office. When the Goldmeiers’ and therefore failed to make out a prima facie case of
children were young, they had used these funds to hire outside religious discrimination. The district court also denied the
office assistance. Nevertheless, at this time outside help was state law claim of discharge contrary to public policy because
not acceptable to the Goldmeiers for multiple reasons. They it concluded the Goldmeiers had not been discharged. Before
contended that the office expense allowance would be this court now is the Goldmeiers’ timely appeal of the grant
insufficient to pay for an additional agent and that they would of summary judgment.
be required to cover any deficit in the allowance out of their
personal funds, as they had been required to do in previous
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 5 6 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
II out of their office expense allowance, allowing the
Goldmeiers to comply with both the SAS and their religious
“Title VII makes it unlawful for an employer to ‘discharge requirement. In this regard the factual situation differs from
any individual, or otherwise to discriminate against any the more common religious discrimination case in which the
individual with respect to his compensation, terms, employer explicitly requires an employee to work during the
conditions, or privileges of employment, because of such Sabbath. The employment requirement here only placed an
individual’s religion.’” Cooper v. Oak Rubber Co., 15 F.3d additional burden on the religious observance, the expenditure
1375, 1378 (6th Cir. 1994) (quoting 42 U.S.C. § 2000e- of the limited office expense allowance or the Goldmeiers’
2(a)(1), internal alterations omitted); accord Virts v. Consol. personal funds.
Freightways Corp., 285 F.3d 508, 516 (6th Cir. 2002).
Nevertheless, where the conflict between an employee’s
The employee bears the burden of establishing a prima religious belief and an employer’s requirement can only be
facie case, and sustains that burden by showing that he removed by the employee’s forfeiture or expenditure of a
holds a sincere religious belief that conflicts with an substantial benefit available to other employees, we hold that
employment requirement; that he has informed his conflict sufficient to establish a prima facie religious
employer of the conflict; and that he was discharged or discrimination case exists.1 In Cooper, we ruled on a similar
disciplined for failing to comply with the conflicting argument with respect to vacation time:
requirement.
We recognize that use of vacation time legitimately may
Cooper, 15 F.3d at 1378 (citing Smith v. Pyro Mining Co., be required to allow an employee to avoid work on
827 F.2d 1081, 1085 (6th Cir. 1987)); accord Virts, 285 F.3d religious holidays or, in combination with other methods,
at 516. Religious discrimination can arise out of an to allow an employee to regularly avoid working on the
employer’s failure to “accommodate those employees who Sabbath. Under appropriate circumstances, this use of a
refuse to work on particular days of the week because of their portion of an employee’s vacation entitlement may be
religious beliefs.” Pyro Mining Co., 827 F.2d at 1085. reasonable. In this case, however, Cooper was faced
with the choice of working on the Sabbath or potentially
In the present case, the parties agree that the Goldmeiers using all of her accrued vacation to avoid doing so. Getz
sincerely hold a religious belief barring them from work on v. Pennsylvania, 802 F.2d 72 (3d Cir. 1986); United
the Sabbath and that they had informed their employer of that States v. City of Albuquerque, 545 F.2d 110, 113-14
belief. Therefore the existence of a prima facie case depends (10th Cir. 1976). An employer who permits an employee
on two disputed propositions, whether that religious belief to avoid mandatory Sabbath work only by using accrued
conflicted with the SAS and whether they were discharged or vacation does not “reasonably accommodate” the
disciplined for failing to comply with the SAS. employee’s religious beliefs. Such an employee stands
Allstate contends that the SAS did not conflict with the
Goldmeiers’ religious beliefs because it did not directly 1
This is not to say that every such conflict results in a valid religious
require them to work on the Sabbath. The SAS merely discrimination claim. Many conflicts of this type will still fail to give rise
required that the office would remain open during Sabbath to such a claim under the reasonable accommodation part of the test.
hours, but did not prevent them from hiring substitute agents However, the search for reasonable accomm odation is not part of the
prima facie case.
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 7 8 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
to lose a benefit, vacation time, enjoyed by all other The Goldmeiers maintain that they were constructively
employees who do not share the same religious conflict, discharged. “To constitute a constructive discharge, the
and is thus discriminated against with respect to a employer must deliberately create intolerable working
privilege of employment. conditions, as perceived by a reasonable person, with the
intention of forcing the employee to quit and the employee
Cooper, 15 F.3d at 1379 (internal citation form normalized).2 must actually quit.” Moore v. KUKA Welding Sys. & Robot
By the same token, the Goldmeiers were faced with a choice Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Logan
of violating the Sabbath or hiring outside staff using either v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). In the
their own funds or their limited office expense allowance, case of constructive discharge, “working conditions would
otherwise available for other business-enhancing purposes to have been so difficult or unpleasant that a reasonable person
other agents.3 Such an incompatibility between an in the employee’s shoes would have felt compelled to resign.”
employment and a religious requirement is sufficient to create Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887
a conflict. (6th Cir. 1996) (quoting Held v. Gulf Oil Co., 684 F.2d 427,
432 (6th Cir. 1982)). “In determining whether an
We have consistently held that a prima facie case of environment is one that a reasonable person would find
religious discrimination requires discharge or discipline for hostile or abusive and that the plaintiff in fact did perceive to
failure to comply with an employment requirement be so, courts look at all of the circumstances.” Hafford v.
conflicting with a religious requirement. See, e.g., Cooper, Seidner, 183 F.3d 506, 512 (6th Cir. 1999). Such
15 F.3d at 1378; Pyro Mining Co., 827 F.2d at 1085; Virts, circumstances include “the frequency of the discriminatory
285 F.3d at 516-17. In the present case it is undisputed that conduct; its severity; whether it is physically threatening or
the Goldmeiers were not actually discharged or disciplined. humiliating, or a mere offensive utterance; and whether it
To remedy this defect fatal to their case, the Goldmeiers offer unreasonably interferes with an employee’s performance.”
two alternative theories: that they were constructively Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); accord Abeita
discharged and that the 1991 Civil Rights Act amendments v. TransAmerica Mailings, Inc., 159 F.3d 246, 251 (6th Cir.
sub silentio eliminated the discharge requirement. 1998); Hafford, 183 F.3d at 512. The circumstances are
examined from the point of view of a reasonable member of
the protected class. See Yates v. Avco Corp., 819 F.2d 630,
2
This discussion in Cooper occu rs within the context of the 636-37 & n.2 (6th Cir. 1987) (evaluating whether sexual
reasonable acco mmoda tion analysis. But that circumstance on ly harassment constitutes constructive discharge from the point
strengthens our conclusion. If requiring an em ployee to use up all of her of view of a reasonable member of the gender being
vacation time to avoid working on the Sabbath is not a re asonable
accommodation of a religious conflict, it a fortiori is not a resolution that
harassed).
eliminates the very existence of a religious conflict.
Under these standards, Allstate did not expose the
3
The parties extensively dispute the cost and availability of such Goldmeiers to a work environment so hostile and abusive as
support staff and whether the office expense allowance could have been to compel a reasonable Orthodox Jewish couple to quit, rather
expected to comple tely cover it. However, there appears to be no dispute than tolerate it for one more day. The Goldmeiers’ physical
that the expense would have been greater than the allowance or would work environment was their own office, selected, staffed, and
have at least consumed a substantial fraction of the allowance. As the controlled exclusively by themselves and hence could hardly
Goldme iers would have b een substantively adve rsely affected by this
expenditure in either case, we need not resolve this factual dispute. have been intolerable to them. Their broader corporate
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 9 10 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
environment consisted of regular contacts with Allstate the first actual conflict between their religious and
management. Prior to the announcement of the new SAS in employment requirements. Even in combination, all
1998, the Goldmeiers cite a few instances of religious circumstances of employment cited by the Goldmeiers are
incompatibility with Allstate. David Goldmeier forfeited two legally insufficient to create an intolerably hostile work
pleasure trips, one to Las Vegas and one to the Bahamas, that environment.
Allstate had awarded him in recognition of his services
because they had been scheduled on the Sabbath and Rosh The Goldmeiers’ constructive discharge claim also fails
Hashanah, respectively. The Goldmeiers also were unable to independently for lack of evidence that Allstate “deliberately
participate in a previous, voluntary, Premier Service Agency create[d] intolerable working conditions . . . with the intention
program, because it too had required their office to be open of forcing” the Goldmeiers to quit. Moore, 171 F.3d at 1080.
on Saturdays. The Goldmeiers do not allege that any Allstate “To determine if there is a constructive discharge, both the
representative ever made any discriminatory, hostile, employer’s intent and the employee’s objective feelings must
offensive, humiliating, or physically threatening comment be examined.” Ibid. (citing Held v. Gulf Oil Co., 684 F.2d
towards them. The Goldmeiers do not even allege that any 427, 432 (6th Cir. 1982)). The seemingly stringent intent
comment, however innocuous, with respect to their religion requirement can, however, be met “by demonstrating that
was ever made by an Allstate representative. Moreover, until quitting was a foreseeable consequence of the employer’s
the Goldmeiers’ abrupt resignation, no action undertaken by actions.” Ibid. Allstate’s offer of compromise after the
Allstate seems to have substantively interfered with the Goldmeiers quit, on terms the Goldmeiers had earlier
Goldmeiers’ effective performance of their work. To the proposed, nevertheless, strongly suggests the absence of any
contrary, the Goldmeiers express how much they enjoyed such intent. While it is conceivable that this offer was not
their work at Allstate for more than a decade. made in good faith and for the sole purpose of avoiding a
claim such as the Goldmeiers raise here, there is no evidence
Finally, in 1998, there was the announcement of the Service to support a finding of such an elaborate ruse. Therefore, we
Availability Standards. Allstate intransigently refused to conclude that there was no genuine issue of material fact that
adjust the new office hours to be more congenial to the the Goldmeiers were not constructively discharged.
Goldmeiers. This intransigence, if it had not been tempered,
as in fact it was, could potentially have led to an actual In the alternative to a finding that they were constructively
discharge at some point in the future. The Goldmeiers cite discharged, the Goldmeiers argue that the discipline or
Cooper for the proposition that the mere prospect of discharge requirement found in our case law is a vestige of
discipline at some future point in time is sufficient to create the pre-1991 employment discrimination law. See, e.g., Pyro
a hostile work environment. However, Cooper resigned the Mining Co., 827 F.2d at 1085 (decided in 1987); Cooper, 15
day before her Sabbath absence would, cumulatively with the F.3d at 1378 (decided in 1994 but adjudicating a claim arising
discipline for her earlier Sabbath absences, inevitably have in 1987). Prior to 1991, relief in employment discrimination
led to her suspension under the employer’s announced rule. suits was limited to injunctive and equitable relief, such as
Cooper, 15 F.3d at 1378, 1379 n.1. Thus, the threat of back pay. 42 U.S.C. § 2000e-5(g). Under this law, absent
discharge had an immediacy which contrasts sharply with the discharge or discipline, there would have been little a court
circumstances of the Goldmeiers who continued to work for could have done to help a victim of employment
Allstate until both of them had found new employment and discrimination. The Goldmeiers argue that this court, as well
then resigned fifty-three days before there would have been as numerous other courts, inadvertently turned this limitation
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 11 12 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
on remedies into an element of the prima facie case. The 156 F.3d 771, 774-75 (7th Cir. 1998) (noting that “the
1991 amendments expanded the remedies available for [employer] had conceded that [the plaintiff] had established
intentional employment discrimination by authorizing a prima facie case of religious discrimination” and beginning
compensatory and punitive damages. 42 U.S.C. its analysis with “the issue of whether the [employer] has
§ 1981a(a)(1). With these remedies, even a victim of satisfied its duty of reasonable accommodation”). The
employment discrimination who was not discharged or Goldmeiers also point to one case in another circuit which
disciplined could be offered relief by the court. Hence, they upheld an injunction against an employer barring it from
argue, the discharge requirement repeatedly stated in our case discharging an employee who for religious reasons refused to
law is obsolete and should not be enforced against them. pay certain union dues. Tooley v. Martin-Marietta Corp., 648
F.2d 1239 (9th Cir. 1981); see also Rodriguez, 156 F.3d at
Nevertheless, for a number of reasons, we hold that 774 (noting that the plaintiff had requested injunctive relief).
discharge or discipline remains an element of a prima facie But the Tooley court was considering the grant of an
cases of religious discrimination in employment. First, we injunction, a form of relief that is necessarily directed at the
recently so held in a case undisputably interpreting the post- prevention of some future violation of the law, and the future
1991 statute. In Virts, arising out of events occurring in 1997, violation considered there, discharge, was exactly of the type
we reiterated that “[t]o establish a prima facie case, a plaintiff that the Goldmeiers now argue need no longer be shown.
must demonstrate that . . . he was discharged or disciplined Conversely, the Goldmeiers filed an action for damages,
for failing to comply with the conflicting employment which must be based on the defendant’s past adverse
requirement.” 285 F.3d at 516 (citing Pyro Mining Co., 827 employment actions.4 The fact remains that neither this
F.2d at 185). Even were we so inclined, absent circumstances court, nor any of its sister circuits with substantively parallel
not present here, no panel of this court has the authority to religious discrimination jurisprudence, has ever endorsed the
overrule the previous, published decision of another panel. Goldmeiers’ conclusion that no adverse employment action
See, e.g., Goad v. Mitchell, 297 F.3d 497, 503 (6th Cir. 2002) need be shown to sustain a prima facie case.
(citing Salmi v. Sec'y of Health and Human Servs., 774 F.2d
685, 689 (6th Cir. 1985)). Third, reading the discipline or discharge requirement out
of the prima facie case creates significant analytical
Second, despite an impressive tour through the circuits, the difficulties. Absent this requirement, a prima facie case
Goldmeiers fail to discover even a single federal appellate would lie wherever there was a sincere conflict and
case in the twelve years since the enactment of the compensation would be due when, in addition, the employer
amendments holding that the discharge or discipline does not immediately adopt a reasonable accommodation.
requirement has been eviscerated. Rather, the Goldmeiers What a successful religious discrimination claim would not
quote language requiring reasonable accommodation, trying require would be any actual employer action to the detriment
to imply that reasonable accommodation is required without of the employee. Employers who, while not offering a formal
any condition precedent, without mentioning that these
statements follow a previous finding, or defendant’s
concession, of a prima facie case. See, e.g., Ansonia Bd. of 4
Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (explicitly W e need not and do not de cide w hether the Goldm eiers’ action, if
declining to rule on the existence of a prima facie case where brought for injunctive re lief against enforcement of the S AS instead of,
or in addition to, damages, could have been sustained by the district court
employee was not discharged); Rodriguez v. City of Chicago, on the facts alleged here.
No. 01-3888 Goldmeier, et al. v. Allstate Ins. Co. 13 14 Goldmeier, et al. v. Allstate Ins. Co. No. 01-3888
accommodation, deliberately turned a blind eye to employees’ given. They resigned and were not discharged, actually or
religiously motivated minor deviations from the letter of constructively. Therefore, they have no claim under this
company policy–not an unusual situation one would heading.
imagine–would suddenly find themselves liable as civil rights
offenders. III
Finally, we note that we have previously rejected a parallel For the foregoing reasons, we AFFIRM the judgment of
argument. Hiler v. Brown, 177 F.3d 542, 546-57 (6th Cir. the district court.
1999) (rejecting argument that the 1991 amendments by
allowing compensatory damages implicitly expanded the
class of potential employment discrimination defendants
beyond employers). For these reasons, we decline to follow
the Goldmeiers’ suggestion to remove the discipline or
discharge requirement.
The parties expend considerable energy on the reasonable
accommodation question prominent in the religious
discrimination case law. “Once a prima facie case is
established, the burden shifts to the employer to show that it
could not reasonably accommodate the employee without
undue hardship.” Cooper, 15 F.3d at 1378 (citing Pyro
Mining Co., 827 F.2d at 1085). “To require an employer to
bear more than a de minimis cost in order to accommodate an
employee’s religious beliefs is an undue hardship.” Cooper,
15 F.3d at 1378 (citing Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 84 (1977)). But reasonable
accommodation is not part of the prima facie case, the basis
on which the district court decided the case. As we uphold
the district court on the same basis, we do not rule on the
reasonable accommodation question.
The Goldmeiers’ other claims must fail for reasons already
elucidated. Ohio State employment discrimination law under
O.R.C. § 4112 tracks federal law under 42 U.S.C. § 2000e-5.
Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc.,
630 N.E.2d 669, 672 (Ohio 1994). Therefore, when their
federal religious discrimination claim failed, so did their state
religious discrimination claim. The Goldmeiers’ wrongful
discharge state law claim must also fail for reasons already