Case: 16-16923 Date Filed: 03/09/2018 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16923 ________________________
D.C. Docket No. 6:14-cv-02108-GKS-GJK
DARRELL PATTERSON,
Plaintiff-Appellant,
versus
WALGREEN CO.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 9, 2018)
Before ED CARNES, Chief Judge, NEWSOM, and SILER, * Circuit Judges.
PER CURIAM:
* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 16-16923 Date Filed: 03/09/2018 Page: 2 of 19
Darrell Patterson brought Title VII claims for religious discrimination,
failure to accommodate religious practices, and retaliation against his former
employer, Walgreen Company (Walgreens). He appeals the district court’s order
granting summary judgment to Walgreens and denying summary judgment to him.
I. BACKGROUND
A. Facts
Patterson began working for Walgreens in October 2005 as a customer care
representative in Walgreens’ Orlando Customer Care Center, a call center that
operates seven days a week. As a Seventh Day Adventist, Patterson’s religious
beliefs prohibit him from working during his Sabbath, which occurs from sundown
on Friday to sundown on Saturday. At the time he was hired Patterson
communicated to Walgreens that he would not be available to work during his
Sabbath, and Walgreens initially accommodated that request.
Patterson was promoted a number of times and ultimately became a training
instructor. To work around Patterson’s Sabbath observance, his supervisor agreed
to schedule regular training classes between Sunday and Thursday. But on
occasion, business needs required emergency trainings, which were scheduled on a
case by case basis and sometimes included Friday nights or Saturdays. In an effort
to further accommodate him, Patterson’s supervisor allowed him to swap shifts
with other employees when he was assigned a training class during the Sabbath, an
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option Patterson used on several occasions. There were times, however, where
Patterson’s scheduling requests could not be accommodated due to business
demands ― especially when those demands required Patterson to attend (rather
than teach) a training session. In 2008, for example, Walgreens’ business needs
required that Patterson attend a multi-week mandatory training that included
Friday evening sessions. Patterson refused to do so and his absence during that
period resulted in progressive discipline for each occurrence.
Then on August 19, 2011, Patterson was informed that he would need to
conduct an emergency training session the next day, a Saturday. The urgent need
for a session arose because the Alabama Board of Pharmacy had ordered
Walgreens to shut down its call center activities at the Muscle Shoals Customer
Care Center, and it gave Walgreens only two days to do so. As a result, Walgreens
had only a few days to train its Orlando Customer Care Center employees to
handle the approximately 50,000 phone calls per month that no longer could be
handled in Alabama. Patterson’s supervisor told him he would have to come up
with a solution, which he took to mean he would need to find someone to cover the
emergency training session for him if he wanted to avoid working on Saturday.
She also told him it would not be fair to ask the Orlando Customer Care Center’s
only other training instructor, Lindsey Alsbaugh, to cover for him.
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Nonetheless, Patterson called and asked Alsbaugh, but she could not conduct
the Saturday training session because she had to care for her children. Although
Patterson agrees that several other non-trainer employees at the Orlando facility
could have conducted the training session, he did not attempt to contact any of
them. 1 Instead, Patterson left two phone messages for his supervisor advising her
that he could not conduct the Saturday training session because he would be
observing his Sabbath. Patterson did not report to work on Saturday to conduct the
emergency training session. As a result, the training was delayed.
The following Tuesday Patterson met with his supervisor and a human
resources representative to discuss his absence on Saturday. Patterson reaffirmed
that he would not work on his Sabbath. The human resources representative
suggested that Patterson consider returning to his prior position as a customer care
representative or look for another job at Walgreens that had a large employee pool
from which Patterson could more easily find employees to switch shifts with him
when needed. Patterson asked if he would be guaranteed that he would not have to
work on Friday nights or Saturdays, and he was told there could be no guarantee.
1 At oral argument, Patterson’s counsel asserted for the first time that Patterson’s supervisor told him that he could swap only with Alsbaugh because she was the only employee at the Orlando center on the same level as Patterson. The record does not support that assertion. Patterson did testify at his deposition that in the past, his supervisor had allowed him to swap only with employees at his “same job level.” But he testified that there were other employees besides Alsbaugh “who had that same level of expertise” who he had swapped shifts with in the past. And he testified that some of those employees could have covered the training session, but he contacted only Alsbaugh and his supervisor. 4 Case: 16-16923 Date Filed: 03/09/2018 Page: 5 of 19
Because Patterson was one of only two trainers at the Orlando facility, and the
other trainer would soon be leaving the company, Walgreens concluded that it
could not accommodate Patterson’s request that he never be scheduled to work on
a Friday night or Saturday.
Because of his refusal to ever work on his Sabbath and his refusal to look for
another position at Walgreens that would make it more likely that his
unavailability could be accommodated, he was suspended and then terminated a
couple of days later. Walgreens decided to take that action because it could not
rely on Patterson if an urgent business need arose that required emergency training
on a Friday night or a Saturday.
B. Procedural History
After Patterson filed suit, both parties moved for summary judgment. In
ruling on the cross-motions for summary judgment, the district court determined
that although Patterson’s complaint contained counts alleging failure to
accommodate, religious discrimination, and retaliation, all three counts in fact
“center[ed] on Walgreens’ alleged failure to accommodate Patterson’s religious
beliefs by scheduling Patterson to work the Saturday [s]ession and subsequently
terminating Patterson’s employment after he failed to report to work for the
Saturday [s]ession.” The district court focused its analysis on whether a genuine
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issue of material fact existed as to Walgreens’ failure to accommodate Patterson’s
Sabbath observance.
The court concluded that: (1) Walgreens had reasonably accommodated
Patterson’s religious beliefs by permitting him to swap shifts with other employees
when his scheduled shifts conflicted with the Sabbath and by offering him the
possibility of transferring to other positions within Walgreens that would make it
easier for him to swap shifts when needed; and (2) Walgreens would suffer an
undue hardship if required to guarantee that Patterson never worked during
Sabbath hours given Walgreens’ shifting and urgent business needs. It granted
Walgreens’ motion for summary judgment and denied Patterson’s.
II. DISCUSSION
A. Religious Accommodation Claim
The district court did not err in granting summary judgment to Walgreens
and denying it to Patterson on his Title VII religious accommodation claim.
Title VII prohibits an employer from discharging an employee on the basis of the
employee’s religion. 42 U.S.C. § 2000e-2(a)(1). The word “religion” in the
statute includes “all aspects of religious observance and practice, as well as belief,
unless an employer demonstrates that he is unable to reasonably accommodate to
[sic] an employee’s . . . religious observance or practice without undue hardship on
the conduct of the employer’s business.” Id. § 2000e(j). Therefore, “[a]n
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employer has a ‘statutory obligation to make reasonable accommodation for the
religious observances of its employees, short of incurring an undue hardship.’”
Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir.
2012) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S. Ct.
2264, 2272 (1977)).
“In religious accommodation cases, we apply a burden-shifting framework
akin to that articulated in McDonnell Douglas Corp. v. Green.” Id. (citation
omitted). The plaintiff must first establish a prima facie case of discrimination
based on failure to accommodate religious beliefs by showing that: (1) he had a
bona fide religious belief that conflicted with an employment requirement; (2) he
informed his employer of that belief; and (3) he was discharged for failing to
comply with the conflicting employment requirement. Id. If the plaintiff
establishes a prima facie case, the burden shifts to the employer to demonstrate that
it either offered the employee a reasonable accommodation or could not do so
without undue hardship. See id.; 42 U.S.C. § 2000e(j).
No one disputes that Patterson established a prima facie case. The question
is whether Walgreens has demonstrated that the evidence construed in the light
most favorable to Patterson shows there is no genuine issue of material fact and it
is entitled to judgment as a matter of law because it offered Patterson a reasonable
accommodation or could not accommodate him without undue hardship.
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According to the Supreme Court, “a reasonable accommodation is one that
‘eliminates the conflict between employment requirements and religious
practices.’” Walden, 669 F.3d at 1293 (quoting Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 70, 107 S. Ct. 367, 373 (1986)). The employer, however,
is not required to accommodate “at all costs.” Philbrook, 479 U.S. at 70, 107 S. Ct.
at 373. The Supreme Court has said that an “undue hardship” occurs when an
employer must bear more than a “de minimis cost” in accommodating the
employee’s religious beliefs, and involves “not only monetary concerns, but also
the employer’s burden in conducting its business.” Beadle v. City of Tampa, 42
F.3d 633, 636 (11th Cir. 1995) (quoting in part Hardison, 432 U.S. at 84 n.15, 97
S. Ct. at 2277 n.15).
To comply with Title VII, an employer is not required to offer a choice of
several accommodations or to prove that the employee’s proposed accommodation
would pose an undue hardship; instead, the employer must show only “that the
employee was offered a reasonable accommodation, ‘regardless of whether that
accommodation is one which the employee suggested.’” Walden, 669 F.3d at
1293–94 (quoting Beadle v. Hillsborough Cty. Sheriff’s Dep’t, 29 F.3d 589, 592
(11th Cir. 1994)). In other words, “any reasonable accommodation by the
employer is sufficient to meet its accommodation obligation.” Id. at 1294 (quoting
Philbrook, 479 U.S. at 68, 107 S. Ct. at 372) (alteration omitted). An employer
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may be able to satisfy its obligations involving an employee’s Sabbath observance
by allowing the employee to swap shifts with other employees, or by encouraging
the employee to obtain other employment within the company that will make it
easier for the employee to swap shifts and offering to help him find another
position. See id.; Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d
1317, 1322–24 (11th Cir. 2007). The other side of the equation is that the
employee has a “duty to make a good faith attempt to accommodate [his] religious
needs through means offered by the employer.” Walden, 669 F.3d at 1294
(concluding that the district court properly granted summary judgment to the
employer where the employee did not accept the employer’s offer of help in
applying for other positions within the company).
The undisputed facts show that Walgreens offered Patterson reasonable
accommodations that he either failed to take advantage of or refused to consider,
and that the accommodation he insisted on would have posed an undue hardship to
Walgreens. Walgreens shifted the regular training schedule to Sunday through
Thursday for Patterson. That minimized conflicts. For unusual training sessions
that were conducted on his Sabbath, Walgreens allowed Patterson to find other
employees to cover his shifts, and he did so on several occasions. Patterson
conceded that his supervisor had never refused one of his requests to swap a
Sabbath shift with a willing employee.
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Regarding the Saturday, August 20, 2011 emergency training session that
Patterson was assigned to conduct, besides his supervisor, he called only one
employee, Alsbaugh, who advised him that she could not cover for him because of
her childcare obligations. Although Patterson thought that several other employees
could have covered the training session for him, he did not attempt to contact any
of them.
Walgreens met its obligations under Title VII by allowing Patterson to
arrange a schedule swap with other employees when they were willing to do so.
See Morrissette-Brown, 506 F.3d at 1322–24 (holding that an employer that
allowed an employee to swap shifts and posted a shift schedule the employee could
use to find others willing to swap shifts was a reasonable accommodation and that
the employer was not required to actively assist the employee in arranging a shift
swap). Walgreens was not required to ensure that Patterson was able to swap his
shift, nor was it required to order another employee to work in his place. See
Hardison, 432 U.S. at 80–81, 97 S. Ct. at 2275 (explaining that an employer is not
required to accommodate an employee’s religious observance at the expense of
other employees who have other strong, but nonreligious, reasons for not working
that shift).
Not only that, but after Patterson missed the training session that gave rise to
this case, Walgreens’ human resources manager encouraged him to seek a different
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position within the company, including his former position as a customer care
representative, where a larger pool of employees would make it easier for him to
swap shifts in the future. Patterson did not want to pursue that option. But he had
a duty to make a good faith attempt to accommodate his religious needs through
the means offered by Walgreens. See Walden, 669 F.3d at 1294.
Patterson argues that returning to the customer care representative position
would have been a demotion that lowered his pay. But he has not presented any
evidence to support that assertion. Because he was not amenable to changing
positions, there were no discussions about what his pay might have been had he
transferred to a customer care representative position. There is no evidence he
asked about that. 2
Patterson also points out that Walgreens could not assure him that his
schedule as a customer care representative would never conflict with his Sabbath.
Guarantees are not required. And the record does show that even if moving to the
customer care representative position did not completely eliminate the conflict, it
would have enhanced the likelihood of avoiding it because there were so many
2 Patterson’s summary judgment brief stated that he began working as a customer care representative at $9.75 an hour in 2005, but his record citation (to his employment application attached as an exhibit to his deposition) does not support his statement about his pay at that time. Patterson has not pointed to any other evidence in the record of a customer service representative’s rate of pay in either 2005, when Patterson was hired, or in 2011, when Walgreens offered to transfer him into the position. Nor has he shown that Walgreens would have insisted that he accept less pay than he was receiving in the position he held before any transfer. 11 Case: 16-16923 Date Filed: 03/09/2018 Page: 12 of 19
more employees with whom he could swap shifts, as he had done during his almost
six years with the company.
Patterson argues that Walgreens could have scheduled training sessions on
other days or required other employees to conduct training sessions during his
Sabbath. But Walgreens was not required to give Patterson a choice of
accommodations or his preferred accommodation. See id. at 1293–94. Under
those circumstances, the district court did not err in granting summary judgment to
Walgreens because it afforded Patterson reasonable accommodations, which he
failed to take advantage of. See Morrissette-Brown, 506 F.3d at 1322 (explaining
that the “inquiry ends when an employer shows that a reasonable accommodation
was afforded the employee, regardless of whether that accommodation is one the
employee suggested”) (quotation marks omitted).
Because Walgreens reasonably accommodated Patterson’s religious practice,
we need not consider the issue of undue hardship. Philbrook, 479 U.S. at 68–69,
107 S. Ct. at 372 (“[W]here 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. . . . [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.”); see also Walden,
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669 F.3d at 1294 (same); Morrissette-Brown, 506 F.3d at 1324 n.7 (same); Beadle,
29 F.3d at 592 (same). But even assuming the accommodations offered by
Walgreens were not reasonable, allowing him to retain his training instructor
position with a guarantee that he would never have to work on Friday nights or
Saturdays, which is what he insisted on, would have posed an undue hardship for
Walgreens’ business operations.3
Although Walgreens had previously changed the general training schedule to
Sunday through Thursday in order to accommodate Patterson, it did not alter the
scheduling of emergency training sessions. Walgreens’ Orlando Customer Care
Center operates seven days a week and sometimes needs emergency training for its
employees based on business needs. The circumstances leading to the Saturday,
August 21, 2011 training sessions were a true emergency. Because of the Alabama
Board of Pharmacy’s actions and the two days it gave Walgreens to effectively
shut down its Customer Care Center operations in Alabama, the company was
forced to redirect approximately 50,000 phone calls per month from the Alabama
center to Orlando. The employees in Orlando had to be trained immediately so
3 There is no merit to Patterson’s claim that the district court conflated the reasonable accommodation standard and the undue hardship standard. The district court’s summary judgment order concluded that Walgreens’ efforts to accommodate Patterson’s Sabbath observance satisfied its duty to make reasonable accommodations and, alternatively, that delaying emergency training or scheduling other employees to cover all of Patterson’s shifts during the Sabbath would require Walgreens to bear a greater than de minimis cost and thus would be an undue hardship. 13 Case: 16-16923 Date Filed: 03/09/2018 Page: 14 of 19
they could begin handling all of those calls. Patterson’s adamant refusal to work
on Saturday delayed the required training.
The discussions that Patterson’s supervisor and a human resources
representative had with him the week after he refused to work as scheduled showed
that what Patterson insisted on would produce undue hardship for Walgreens in the
future. To ensure that Patterson received the time off for Sabbath observance that
he was insisting on, Walgreens would have had to schedule all training shifts,
including emergency ones, based solely on Patterson’s religious needs, at the
expense of other employees who had nonreligious reasons for not working on
weekends. See Hardison, 432 U.S. at 80–81, 97 S. Ct. at 2275. In the immediate
future, the burden to work all Friday night and Saturday shifts would have fallen
on Alsbaugh, Walgreens’ only other training instructor at the time. And it is
undisputed that she was in the process of leaving the Orlando facility, which would
have left Patterson as the only training instructor there. Walgreens then would
have been required either to eliminate Friday night and Saturday training sessions
altogether, regardless of its business needs, or to schedule less-effective non-
trainers to train the untrained some of the time.
Walgreens, like the employer in Hardison, was required to hold trainings on
Saturdays at least occasionally because the Orlando facility operated every day and
because business necessity –– the sudden closing of the Muscle Shoals facility
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being a prototypical example –– sometimes required urgent training. See
Hardison, 432 U.S. at 80, 97 S. Ct. at 2275. Under those circumstances, the
accommodation Patterson sought would have imposed an undue hardship on
Walgreens just as it would have for the employer in Hardison. See id. at 84–85, 97
S. Ct. at 2276–77.
B. Religious Discrimination and Retaliation Claims
The district court reasoned that Patterson’s religious discrimination and
retaliation claims were based on his accommodation claim and decided that they
fell with it. Patterson contends that district court erred by not independently
analyzing his discrimination and retaliation claims. We disagree.
Patterson’s three causes of action were each based solely on Walgreens’
alleged failure to accommodate his Sabbath observance. Specifically, Patterson’s
complaint relied on the same facts outlining the events leading up to his
termination to allege: in Count One, titled “Title VII – Religious Discrimination,”
that Walgreens intentionally discriminated against him on the basis of religion
because it forced him to choose between work and observing his Sabbath; in Count
Two, titled “Title VII – Failure to Accommodate,” that Walgreens failed to
reasonably accommodate his religious belief prohibiting work on his Sabbath; and
in Count Three, titled “Title VII – Retaliation,” that Walgreens retaliated against
him for requesting continued accommodation by giving him “the ultimatum” of
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violating his religious belief, resigning, or being terminated. He claimed that all
three claims arose under 42 U.S.C. § 2000e(j), which defines “religion” to include
the “reasonable accommodation” and “undue hardship” standards.
The district court correctly identified the scope of Patterson’s Title VII
claims when it determined that all three of them turned on Walgreens’ alleged
failure to accommodate Patterson’s religious need to observe his Sabbath. The
evidence, viewed in the light most favorable to Patterson, shows that in the past
Walgreens had allowed Patterson to swap shifts with other employees, changed its
training schedule, and offered him different employment opportunities to help him
avoid potential conflicts with his religious practice. In this instance Patterson
could have swapped shifts with some of the other employees who were capable of
conducting the training session. And Walgreens decided to terminate his
employment only after he failed to conduct the emergency training session,
insisted that Walgreens guarantee that he would never have to work on his
Sabbath, and refused to consider other employment options within the company
without such a guarantee. Those facts are enough to foreclose any genuine issue of
material fact as to his accommodation claim, his discrimination claim, and his
retaliation claim. Because Patterson’s discrimination and retaliation claims were
bound up with his accommodation claim, the district court did not err in granting
summary judgment to Walgreens on them.
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In any event, we review de novo a district court’s judgment, Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005), and we can affirm on
any basis supported by the record, Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007). It is clear from the record that there is no evidentiary
basis for Patterson’s discrimination and retaliation claims. As for his
discrimination claim, Patterson points to evidence that his supervisor told him it
would not be “fair” for him to ask Alsbaugh, who had to take care of her children
that Saturday and was scheduled to conduct the Sunday training session, to swap
with him, and that his supervisor had encouraged him to work on his Sabbath.
That along with the other evidence in the record is not enough for a jury to find
that religious bias motivated Walgreens’ decision to fire him. See EEOC v.
Abercrombie & Fitch Stores, Inc., 575 U.S. __, 135 S. Ct. 2028, 2032 (2015). As a
result, Patterson’s evidence, without more, is not enough to create a genuine issue
of material fact that his religion was a motivating factor in Walgreens’ decision to
fire him. 4 See id.
4 There is some confusion as to whether the but-for causation standard or the motivating factor causation standard applies to Patterson’s discrimination claim. Compare Abercrombie, 135 S. Ct. at 2032 (“Title VII relaxes [the but-for causation] standard, however, to prohibit even making a protected characteristic a ‘motivating factor’ in an employment decision.”) (quoting 42 U.S.C. § 2000e–2(m)), and Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343, 133 S. Ct. 2517, 2522–23 (2013) (stating that an “employee who alleges status-based discrimination under Title VII” need only show “that the motive to discriminate was one of the employer’s motives”), with Quigg v. Thomas Cty. School Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (stating in a Title VII case that “single-motive claims — which are also known as ‘pretext’ claims — require a showing that bias was the true reason for the adverse action”). But that 17 Case: 16-16923 Date Filed: 03/09/2018 Page: 18 of 19
Patterson’s retaliation claim fails for the same reason. Assuming that he
could establish a prima facie case, Walgreens provided legitimate reasons for firing
him, and Patterson failed to raise a genuine issue of material fact that those reasons
were pretextual. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th
Cir. 2002); see Nassar, 570 U.S. at 362, 133 S. Ct. at 2534. The evidence shows
that Walgreens occasionally had to schedule emergency training sessions based on
urgent business needs. It shows that Walgreens fired Patterson because he insisted
on an accommodation that would have forced Walgreens to schedule all of its
training sessions (including emergency training sessions) around his schedule, and
because he did not use or would not consider the accommodations Walgreens
offered. The evidence does not even suggest that Walgreens acted with a
retaliatory animus in firing Patterson. Patterson cannot turn down Walgreens’
reasonable accommodations and then claim retaliation when it fires him for his
unwillingness to use those accommodations. Summary judgment for Walgreens
was appropriate on his retaliation claim.
For those reasons, we conclude that the district court did not err in granting
summary judgment to Walgreens and denying it to Patterson on his discrimination
and retaliation claims.
confusion does not matter in this case because Patterson has not presented enough evidence to satisfy either causation standard. 18 Case: 16-16923 Date Filed: 03/09/2018 Page: 19 of 19
III. CONCLUSION
The judgment of the district court is AFFIRMED.