Gdalina Novitsky v. American Consulting Engineers, L.L.C.

196 F.3d 699, 1999 U.S. App. LEXIS 26930, 77 Empl. Prac. Dec. (CCH) 46,365, 81 Fair Empl. Prac. Cas. (BNA) 409, 1999 WL 974099
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 26, 1999
Docket99-1471
StatusPublished
Cited by71 cases

This text of 196 F.3d 699 (Gdalina Novitsky v. American Consulting Engineers, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gdalina Novitsky v. American Consulting Engineers, L.L.C., 196 F.3d 699, 1999 U.S. App. LEXIS 26930, 77 Empl. Prac. Dec. (CCH) 46,365, 81 Fair Empl. Prac. Cas. (BNA) 409, 1999 WL 974099 (7th Cir. 1999).

Opinions

EASTERBROOK, Circuit Judge.

Hired at the age of 56, Gdalina Novitsky worked for American Consulting Engineers for 23 months before being let go. She charged her former employer with age and religion discrimination and filed suit after the eeoo issued a right-to-sue letter. The district court granted summary judgment against Novitsky, ruling that the employer’s stated reason—the award of a major contract to a rival firm and a consequent lack of business in the areas of Novitsky’s expertise—could not be deemed a pretext for discrimination. 1999 U.S. Dist. Lexis 1321 (N.D.Ill.1999). Novitsky does not contest this decision on appeal. Instead she contends that American Consulting Engineers should pay damages for failing to accommodate her religious beliefs. Another employee denied her request for time off on the tenth day of Tishri 5757, known as September 23, 1996, in the Gregorian calendar. That day was Yom Kippur, the most sacred of Jewish holy days. On this claim, too, Novit-sky lost in the district court, for the charge Novitsky filed with the eeoc lacks any allegation of failure to accommodate.

When this suit began the stakes were clear: Novitsky wanted reinstatement and back pay. Abandonment of the wrongful-discharge claim contracted the available relief. Suppose Novitsky had refused to work on Yom Kippur and been docked a day’s pay; then the potential damages would have been that day’s pay (the benefit Novitsky would have received had her religious beliefs been accommodated). But Novitsky came to work on Yom Kippur and lost no pay or benefits. Had she been granted time off on Yom Kippur, her employer likely would have charged her with a vacation day anyway (or granted leave without pay), so perhaps all that was ever at issue was a substitution between a religious observance and a vacation day. She seeks damages for the emotional distress caused by working on a holy day. These cannot be very large—and in particular cannot exceed a day’s pay—or Novitsky would not have worked on Yom Kippur. Let us suppose that American Consulting Engineers was legally required to permit Novitsky to take Yom Kippur as [701]*701a vacation day. Faced with a wrongful refusal, Novitsky had a legal obligation of her own: to mitigate her damages. She was required to work or not, whichever caused the lesser injury. Novitsky decided to work, from which it follows that her loss is less than a day’s pay. (She does not supply any reason to think that refusing to appear would have made the firm more likely to fire her; if that were so, the calculation of maximum damages would be more complex. But American Consulting Engineers submits that unexcused absences do not lead to discharge, and Novitsky has not offered any concrete response.)

Although the damages could not exceed a day’s pay, they could be less. How much less depends on the extent of psychic loss Novitsky suffered from behavior at variance with her religious beliefs. Could a civil court estimate, and award as damages, the value of a religious observance? The Supreme Court has held that judicial resolution of a property-ownership dispute within a religious sect by application of canon law would violate the First Amendment, see Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), even though the rival factions had agreed that their disputes would be resolved under canon law. The Court thought that even by entering into contracts that make canon law the rule of decision, a church could not require—and the Constitution does not permit—a civil court to use religious criteria in rendering judgment. Is it possible to resolve Novitsky’s claim without resort to religious criteria, such as how observant Novitsky was? What if the employer contends that Novitsky could have mitigated her damages by converting to Christianity? Damages might be available if the parties could agree on a secular means of ascertaining injury, cf. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979), but Novitsky has not suggested a method. No decision of which we are aware has held that damages computed by the value of a lost religious observance are proper under Title VII of the Civil Rights Act of 1964. But we need not pursue this question, on which the parties’ briefs are silent, because we agree with the district judge’s conclusion that Novitsky is not entitled to litigate an accommodation claim in the first place.

Novitsky charged American Consulting Engineers with discharging her on the basis of age and religion, and with allowing other employees to make anti-Semitic remarks in the workplace. The charge does not mention Yom Kippur or hint at a theory of failure to accommodate her religious practices, a claim different in kind from the normal anti-discrimination principle, which requires the employer to disregard age, religion, and other personal characteristics such as race and sex. Compare 29 U.S.C. § 623(a)(1) and 42 U.S.C. § 2000e-2(a)(1) (prohibition of age and religion discrimination), with 42 U.S.C. § 2000e(j) (requiring the employer “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.”). Novitsky stresses that claims “reasonably related to the allegations of the charge and growing out of such allegations” (Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971), approved in Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976) (en banc)) are part of a charge. But Novitsky wants us to treat all claims under Title VII against a single employer as related to one another, which would eviscerate the statutory charge requirement.

A charge of discrimination enables the eeoc to investigate the allegations and negotiate with the employer; Congress hoped that negotiation often would avoid the need for litigation. Accordingly we have stressed that the essential question is “what eeoC investigation could reasonably be expected to grow from the original complaint.” Babrocky v. Jewel Food Co., 773 [702]*702F.2d 857, 864 n. 2 (7th Cir.1985). A charge alleging discriminatory discharge and anti-Semitic comments at work would not naturally lead to an investigation into the employer’s handling of requests to take time off for religious observance. Wrongful discharge and a hostile work environment (the burden of the “anti-Semitic comments” charge) are remote from a failure to accommodate. What is more, an accommodation claim would have been much easier to conciliate than was a claim of wrongful discharge: the accommodation claim involves a few hundred dollars, which many employers would settle just to avoid legal fees, while the discharge claim would be much more costly to resolve.

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196 F.3d 699, 1999 U.S. App. LEXIS 26930, 77 Empl. Prac. Dec. (CCH) 46,365, 81 Fair Empl. Prac. Cas. (BNA) 409, 1999 WL 974099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gdalina-novitsky-v-american-consulting-engineers-llc-ca7-1999.