George v. The Home Depot Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 30, 2002
• Docket: 02-30026
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -3-

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 -4-

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 -5-

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 -6-

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 -7-

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. No. 02-30026 -8-

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 No. 02-30026 -9-

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. No. 02-30026 -10-

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 -11-

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

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 -12-

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.