No. 17-2926
 |
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
|
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff/Appellant,
v.
NORTH MEMORIAL HEALTH CARE,
Defendant/Appellee.
 |
On Appeal from the United States District Court
for the District of Minnesota
Honorable David S. Doty
|
REPLY BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS APPELLANT
|
JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
JULIE L. GANTZ
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4718
julie.gantz@eeoc.gov
Amir v. St. Louis Univ., 184 F.3d 1017 (8th Cir. 1999).................................... 24
Barker v. Mo. Dep’t of Corr., 513 F.3d 831 (8th Cir. 2005)..................... 6, 22, 23
Bonn v. City of Omaha, 623 F.3d 587 (8th Cir. 2010)....................................... 23
Brosseau v. Haugen, 543 U.S. 194 (2004)......................................................... 18
Burchett v. Target Corp., 340 F.3d 510 (8th Cir. 2003).................................... 13
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).......................... 4
Butler v. City of Prairie Vill., 172 F.3d 736 (10th Cir. 1999)............................ 15
Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999)....................... 13
Crawford v. Met. Gov’t of Nashville & Davidson Cty., 555 U.S. 271 (2009)..........
................................................................................................ 3, 4, 5, 8, 9, 10, 18
Fercello v. Cty. of Ramsey, 612 F.3d 1069 (8th Cir. 2010)................................ 27
Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003)............................. 17, 24
Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013).................................................. 24
Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898 (8th Cir. 2010)............... 16, 17, 24
Knitter v. Corvias Military Living, LLC, 758 1214 (10th Cir. 2014)................. 13
Mader v. United States, 654 F.3d 794 (8th Cir. 2011)...................................... 25
Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007).............. 6, 7, 8, 9
Owsley v. Luebbers, 281 F.3d 687 (8th Cir. 2002)............................................ 25
Payne v. Salazar, 899 F. Supp. 2d 42 (D.D.C. 2012)........................................ 12
Perlman v. Mayor and City Council of Balt. No. SAG-15-1620, 2016 WL 640772 (D. Md. Feb. 18, 2016).............................................................................. 11, 12
Pope v. ESA Servs., 406 F.3d 1001 (8th Cir. 2005)....................................... 9, 10
Pye v. Nu Aire, Inc., 641 F.3d 1011 (8th Cir. 2011)......................................... 23
Robinson v. Shell Oil, 519 U.S. 337 (1997)......................................................... 4
Scruggs v. Pulaski Cty., 817 F.3d 1087 (8th Cir. 2016)......................... 23, 24, 25
Selenke v. Med. Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001)............... 14, 15
Sisk v. Picture People, Inc., 669 F.3d 896 (8th Cir. 2012)................................. 32
Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir. 2002)......................... 32
Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014)............................................... 12
T.L. ex rel. Ingram v. United States, 443 F.3d 956 (8th Cir. 2006).................... 25
U.S. Airways v. Barnett, Inc., 535 U.S. 391 (2002)........................................... 26
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 580 U.S. 338 (2013).............................. 32
Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006)...................... 28
Wehrley v. Am. Family Mut. Ins. Co., 513 F. App’x 733 (10th Cir. 2013)........ 15
Statutes
Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000e-5........................................................................................... 1
42 U.S.C. § 2000e-3(a)...................................................................................... 1
Americans with Disabilities Act
42 U.S.C. § 12203(a).................................................................................. 14, 15
42 U.S.C. § 12203(b).................................................................................. 14, 15
42 U.S.C. § 12111(9)(B)................................................................................... 26
The Commission alleges in this case that North Memorial Health Care violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, by withdrawing an offer of employment from charging party Emily Sure-Ondara in retaliation for her request for a religious accommodation. The district court granted North Memorial’s motion for summary judgment based on its determination that Sure-Ondara’s request for a religious accommodation is not protected activity under Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), because such requests do not fit within the statute’s language.
The Commission argued in its opening brief that this ruling was erroneous because Sure-Ondara’s request for accommodation necessarily conveyed her opposition to North Memorial’s requirement that she work on her Sabbath. The Commission also argued that this Court should follow the extensive case law under the Americans with Disabilities Act (ADA) recognizing that requests for accommodation constitute protected activity because the language in the antiretaliation provisions of both Title VII and the ADA is the same and courts use the same evidentiary framework to analyze claims under both statutes. Finally, the EEOC argued Title VII’s broad statutory scheme strongly favors interpreting requests for accommodation as protected activity.
In its brief, North Memorial advocates for an unduly narrow reading of the term “oppose,” which is not required by the plain language of the statute and is at odds with Supreme Court precedent interpreting the retaliation provision broadly. North Memorial also narrowly reads Sure-Ondara’s request to be exempt from the Friday night shift as mere personal preference rather than as a religious accommodation request, and urges this Court to interpret her statement narrowly to remove it from the sphere of protected conduct. And throughout its brief, North Memorial distorts the Commission’s main arguments, misrepresents the record, and applies improper legal standards. We submit this reply brief to respond.
In its opening brief, the EEOC argued that Sure-Ondara’s request for an exception to working the Friday night shift to which she was assigned qualified as protected opposition to North Memorial’s requirement that she work on her Sabbath in violation of her religious beliefs. The Commission pointed out that Sure-Ondara’s request carried with it a complaint that requiring her to work Friday night shifts conflicted with her religious beliefs. EEOC Br. at 21-22. The Commission also relied on the expansive interpretation of the term “oppose” contained in the antiretaliation provision set out by the Supreme Court in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 276 (2009). There the Court noted that the term “oppose” is undefined in Title VII, must be given its ordinary meaning, and the ordinary meaning includes a wide range of conduct, which “entail varying expenditures of energy,” including “to be hostile or adverse to, as in opinion.” EEOC Br. at 23 (quoting Crawford, 555 U.S. at 276). The Commission stressed that the Crawford Court rejected the Sixth Circuit’s holding that the opposition clause required active, consistent, opposing activity for protection to attach, but it declined to identify a minimum degree of required communication. Id. at 23-24 (discussing Crawford).
The Commission also pointed out that an assessment of the statutory text is not made in a vacuum. EEOC Br. at 22, 35-36. The clarity of the language contained in a statute is “determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil, 519 U.S. 337, 341 (1997). Consistent with Robinson and Crawford, this Court must look at a statutory provision’s purpose and practical consequences when interpreting it and attribute to the term “oppose” the meaning most consistent with the statute’s purposes. Robinson, 519 U.S. at 340-41; Crawford, 555 U.S. at 278; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-64 (2006) (purpose reinforces what language already indicates).
Sure-Ondara’s clear communication of her need for an exception to her assigned schedule for religious reasons and implicit assertion that she was legally entitled to that exception constituted opposition to the requirement that she work on her Sabbath. The Supreme Court in Crawford reasoned that not protecting employees who disclose potentially unlawful conduct while being questioned by the employer would undermine the effectiveness of the statute as interpreted by the Court to encourage internal investigations of sexual harassment claims. Crawford, 555 U.S. at 278-79. Similarly, not protecting employees from reprisal for requesting a religious accommodation would undermine the statute’s effectiveness in ensuring reasonable accommodation and chill employees from asserting their rights under the law.
North Memorial argues in response that the district court correctly held that “merely” requesting a religious accommodation does not “fit” into the plain language of the statute. Def. Br. at 15. It also contends that an individual must “communicate his or her opposition to an act or practice that he or she believes in good faith is unlawful.” Def. Br. at 17. That communication, in North Memorial’s view, must have an “oppositional tenor,” even if that oppositional tenor would hinder the cooperation between employer and employee necessary to reach an accommodation. Id. at 17 n.2. In so arguing, North Memorial mischaracterizes the Commission’s argument as advocating for a departure from the plain language of the antiretaliation provision. See Def. Br. at 12, 20, 24, 28.
The Commission agrees that to be protected activity, Sure-Ondara had to communicate her opposition to a practice she reasonably believed would violate her rights under Title VII. See, e.g., Barker v. Mo. Dep’t of Corr., 513 F.3d 831, 834 (8th Cir. 2005). She did that here. As we argued in our opening brief, Sure-Ondara, like the plaintiff in Ollis v. HearthStone Homes, 495 F.3d 570 (8th Cir. 2007), gave North Memorial notice of her religious needs and implicitly asserted her disagreement with having to work the Friday night shift during her Sabbath. Both Sure-Ondara and Ollis opposed a work requirement that, while not inherently unlawful, was potentially unlawful as applied to them given their religious beliefs. We argued that the factual scenario in this case is not significantly different from what Ollis successfully presented to a jury in support of his Title VII retaliation claim. Ollis thus provides in-circuit precedent for this Court to recognize that Sure-Ondara’s request for a religious accommodation was protected activity. See EEOC Br. at 19-21.
North Memorial counters that the Commission “misunderstands” “a key difference” between the two cases—Ollis did more than request to be excused from a work requirement and “expressly communicated his disagreement with MBE concepts.” Def. Br. at 21. In addition to asking to be excused from the Mind Body Energy sessions, Ollis told his employer that the MBE sessions made him uncomfortable and were “cult-like.” Id. (quoting Ollis, 495 F.3d at 573). The Commission did not argue that the cases were identical, only sufficiently analogous analytically to be instructive in this case. The Ollis Court noted that the evidence at trial that reasonably supported the jury’s verdict in favor of Ollis’s retaliation claim included: (1) the Mind Body Energy sessions conflicted with Ollis's religious beliefs; (2) Ollis expressed disagreement regarding the MBE concept to supervisors; (3) HearthStone arguably required attendance at MBE meetings; and (4) HearthStone kept track of Ollis's attendance at MBE sessions. 495 F.3d at 576.
Similarly here, there was evidence that (1) working on Sure-Ondara’s Sabbath at North Memorial on Friday nights conflicted with her religious beliefs; (2) Sure-Ondara expressed disagreement with having to work on her Sabbath by requesting an exception to this shift; (3) North Memorial required Sure-Ondara’s attendance on Friday nights; and (4) North Memorial surely planned to keep track of her attendance on Friday nights. Ollis did not turn on the fact that the plaintiff suggested the MBE sessions were “cult-like” and made him uncomfortable. There are many ways to communicate opposition to a potentially unlawful act, and there was sufficient evidence here to preclude summary judgment for North Memorial. Sure-Ondara told North Memorial “I don’t work Fridays,” and that she was “unable to work Fridays,” because of her religion, which conveyed a comparable level of discomfort and opposition to that in Ollis. The Supreme Court in Crawford explained that “‘[o]ppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it.” Crawford, 555 U.S. at 277 (internal citation omitted). People “opposed” slavery or capital punishment “without writing public letters, taking to the streets, or resisting the government.” Id. Given this expansive reading of “oppose,” which requires no particular form of criticism or protest, Ollis provides strong support for the Commission’s position that Sure-Ondara’s request for accommodation was protected activity.
North Memorial offers no convincing authority for its cramped reading of the term “oppose.” It cites to Pope v. ESA Services, 406 F.3d 1001, 1010 (8th Cir. 2005) (Def. Br. at 17), but the unsurprising outcome in that case is not contrary to the Commission’s position here. In Pope, the plaintiff, who is black, sued for race discrimination and retaliation. He argued that he engaged in protected activity when he “complain[ed] to management that there was a glaring absence of black managers” at the company’s chain of hotels. 406 F.3d at 1010. In holding that Pope failed to show that he opposed unlawful conduct, this Court characterized his communication as “shar[ing] his observation that there were no blacks in the district-manager position in his region” when he expressed his interest in the district-manager position. Id. Pope “commented that having black district managers would serve as an incentive for him.” Id. His claim failed because “he did not attribute the absence of black district managers in his region to racial discrimination.” Id.
Pope also predated the Supreme Court’s decision in Crawford, which interpreted the term “oppose” expansively. The Crawford Court did not require Crawford to have opined on the illegality of the sexual harassment she reported, and held that her answer to a question in an internal investigation of an alleged harasser was protected opposition. 555 U.S. at 276. In any event, Pope’s communication was aimed primarily at self-promotion in his attempt to win a job, not at identifying a violation of Title VII. By contrast, Sure-Ondara directly and clearly identified a conflict between her religious beliefs and North Memorial’s requirement that she work during her Sabbath when she requested the accommodation. She was implicitly communicating that she was entitled to an accommodation and that denying her the accommodation would violate the law.
North Memorial also relies on several district court decisions outside the Eighth Circuit, none of which provide cogent support for its argument that requests for accommodation are not protected activity. North Memorial argues that Perlman v. Mayor and City Council of Baltimore, No. SAG-15-1620, 2016 WL 640772 (D. Md. Feb. 18, 2016), demonstrates that “a request for a schedule modification, without more, does not amount to protected activity.” Def. Br. at 18. The plaintiff, a parking attendant, requested not to work on Saturdays because he was an observant Jew. 2016 WL 640772, at *1 After his written request to be exempt from working Saturdays was denied, he told his supervisors that “‘given the denial,’” his attorney would be contacting the employer’s counsel. Id. The district court ruled that his request for accommodation was not protected activity, but that his threat to involve his attorney was. Id. at *6. The court did not rule out the possibility that requesting an accommodation could be protected activity. Id. (“While simply making a religious accommodation request may not constitute a protected activity, Mr. Perlman’s threat to involve his attorney upon the initial denial of his request does.”).
Payne v. Salazar, 899 F. Supp. 2d 42, 52 (D.D.C. 2012), is also of minimal relevance in deciding the legal issue before this Court. In a footnote, the district court in Payne rejected the plaintiff’s argument that her written request for “greater flexibility in her work schedule on Sundays to permit her to ‘exercise her religious observance’” was protected activity. Id. at 53 n.7. The court disagreed that requesting leave on Sundays to attend church, without more, was statutorily protected activity because the plaintiff had “not cited a single case within this jurisdiction” suggesting that a request for religious accommodation constitutes statutory protected activity. Id. Payne offers no analysis, and predates the D.C. Circuit’s holding in Solomon v. Vilsack, 763 F.3d 1, 15 (D.C. Cir. 2014), “that the act of requesting in good faith a reasonable accommodation is protected activity under [the ADA].”
Because Title VII and the ADA contain identical antiretaliation provisions, the EEOC urged this Court to follow the many cases in this and other circuit courts of appeals recognizing that requests for reasonable accommodations under the ADA are protected activity. EEOC Br. at 27-31. As the EEOC pointed out, courts routinely apply Title VII precedent to cases brought under the ADA, and vice versa, where similar terms and principles are at issue. EEOC Br. at 27-28; see also Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225 n.8 (10th Cir. 2014) (noting that ADA cases considering whether an entity is an “employer” are instructive in the Title VII setting because the term is defined the same way); Burchett v. Target Corp., 340 F.3d 510, 518-19 (8th Cir. 2003) (ADA case citing Moisant v. Air Midwest, Inc., 291 F.3d 1028, 1031 (8th Cir. 2002), a Title VII case, in interpreting term “adverse employment action”); Cossette v. Minn. Power & Light, 188 F.3d 964, 971 n.6 & 972 (8th Cir. 1999) (ADA case citing two Title VII cases when interpreting term “adverse employment action” and noting “[r]etaliation claims under the ADA are analyzed identically to those brought under Title VII”).
North Memorial cites the interference provision contained in 42 U.S.C. § 12203(b) of the ADA, which is not contained in Title VII, to argue against this approach. Def. Br. at 26-27. However, this circuit’s ADA retaliation cases which recognize that a request for accommodation is protected activity—and nearly all the out-of-circuit cases—rely only on the ADA’s antiretaliation provision, 42 U.S.C. § 12203(a), not the interference provision. See EEOC Br. at 30-32 (listing cases). As North Memorial points out, the Tenth Circuit has cited to the ADA’s interference provision, § 12203(b), in discussing a plaintiff’s retaliation claim. Def. Br. at 26-27. But those decisions do not base their recognition that requests for accommodation are protected activity on the broader protection described in the interference provision, nor do they analyze the language of either provision. Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001), cites to § 12203(b) before listing the elements of a prima facie case of retaliation under the ADA, a framework borrowed from Title VII. The court of appeals stated that there was “evidence suggesting that Selenke’s requests for improvement to the ventilation system are protected by the statute.” Id. at 1265 (citing Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 751-52 (10th Cir. 1999)).[1]
And Wehrley v. American Family Mutual Insurance Company, 513 F. App’x 733, 740 (10th Cir. 2013), notes unsurprisingly that “[t]he ADA prohibits both ‘discriminat[ing] against any individual because such individual has opposed any act or practice made unlawful by this chapter’ and ‘interfer[ing] with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter.’ 42 U.S.C. § 12203(a), (b).” That the same conduct may in some ADA cases be covered both by the retaliation provision and by the interference provision in no way precludes this Court from relying on the extensive ADA jurisprudence recognizing that requests for accommodation are protected activity.
North Memorial also points out that the standard to establish undue hardship is more demanding for employers accused of failing to accommodate disabilities than religious needs under Title VII. Def. Br. at 27-28. Although true, this is irrelevant to the issue here. The Commission did not bring a failure-to-accommodate claim and undue hardship is therefore not at issue in this case. That there are differences in analyzing failure-to-accommodate claims and undue hardship under the ADA versus Title VII is immaterial to the analysis of this retaliation claim—they are different causes of action.
Moreover, North Memorial’s reliance on dicta from this Court’s decision under the ADA in Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 907 (8th Cir. 2010), does not support its contention that “the opposition clause simply does not encompass a request for religious accommodation.” Def. Br. at 18. North Memorial states that this Court in Kirkeberg expressed “great skepticism of the statutory interpretation” that requests for accommodation are protected activity. Def. Br. at 24; see also id. at 28 (characterizing Kirkeberg as expressing “criticism” of prior ADA retaliation cases recognizing that requests for accommodation are protected activity). “[G]reat skepticism” is North Memorial’s characterization, not this Court’s. In Kirkeberg, this Court followed Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003), in holding that the plaintiff’s request for an accommodation under the ADA was protected activity. 619 F.3d at 907-08. In so ruling, this Court highlighted the observation of other courts of appeal that it would be “anomalous” for Congress to leave requests for accommodation unprotected from retaliation. Id. at 908.[2]
Accordingly, this Court should follow the ADA precedent from this and every other circuit to recognize that requests for accommodation under Title VII are also protected activity.
Although the district court ruled only on the legal issue of whether a request for a religious accommodation is protected activity, and not on any factual questions, North Memorial maintains that Sure-Ondara did not communicate a conflict between her religious beliefs and its work requirements. Instead, North Memorial argues, she “framed her request . . . as a matter of personal preference”—that working Friday nights would leave her too tired to attend church on Saturday mornings. Def. Br. at 31, 33; see also id. at 4, 5, 8, 35. North Memorial claims it “was not aware of a conflict . . . because Sure-Ondara did not tell North Memorial that her religion prohibited her from working during the Sabbath.” Id. at 33.
Because the case arises out of the district court’s grant of summary judgment for North Memorial, this Court is “‘required to view all facts and draw all reasonable inferences in favor of the nonmoving party, [the EEOC].’” Crawford, 555 U.S. at 273 n.1 (quoting Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004)). The record evidence would support a finding that North Memorial knew that Sure-Ondara sought an exception to the Friday night shift because she was a Seventh-day Adventist who observes Sabbath from Friday sundown until Saturday sundown. Human resources official Lisa Minshull testified: “I had asked [Sure-Ondara] to help me understand what she was asking of us. And she shared . . . that she needed sundown Friday to Saturday due to Sabbath.” JA-350 (Minshull Dep. 21). Minshull confirmed that Sure-Ondara told her she was a Seventh-day Adventist and could not work Friday nights. Id. (Minshull Dep. 21-22). Minshull testified that she told human resources staff member Nicholas Wombacher and talent manager Melissa Smith “that [Sure-Ondara] needed Friday-Saturday for Sabbath.” Id. (Minshull Dep. 22).
In addition to Minshull’s testimony establishing that she knew Sure-Ondara was asking for a religious accommodation, and that she conveyed that information to other human resources staff, Sure-Ondara’s November 20, 2013, email to Wombacher with Minshull copied on the email states: “Friday sundown to Saturday sundown was the accommodation requested for Sabbath observance.” JA-146. Sure-Ondara also testified that she told North Memorial human resources staff members repeatedly that working Friday nights conflicted with her Sabbath. She stated, “I told [Clements] I need to be accommodated because of my religious beliefs, that I need Friday nights off for Sabbath rest. I don’t work Fridays.” JA-247 (Sure-Ondara Dep. 159). When Minshull called Sure-Ondara to clarify her needs, Sure-Ondara testified, “I told her that I needed Friday nights off for Sabbath, for religious purposes.” JA-248 (Sure-Ondara Dep. 161). When Minshull asked her to explain what she “exactly needed,” Sure-Ondara testified she told her “I needed Friday nights off for Sabbath accommodation because I was unable to work on Friday nights because of my religious beliefs.” Id.
Accordingly, North Memorial’s statement that “[t]he only evidence in the record supporting the EEOC’s characterization of the facts—that Sure-Ondara explained to North Memorial that she needed Friday nights off because her religion prohibited working on the Sabbath . . . is Sure-Ondara’s own deposition testimony, which was given nearly three years after her conversations with North Memorial” (Def. Br. at 5 n.1), is simply incorrect. This Court should thus reject any argument based on North Memorial’s misrepresentation that Sure-Ondara’s request for accommodation was anything but a request for accommodation of her sincerely-held religious beliefs. At best for North Memorial, the evidence creates questions of fact that cannot be resolved on summary judgment.
North Memorial argues that the accommodation Sure-Ondara sought was not reasonable, so it was not required to grant her request, and therefore the request for accommodation cannot be protected activity. Def. Br. at 35-37. North Memorial insists the Commission cannot deny the request was unreasonable because it “found no probable cause to believe that North Memorial had illegally denied her accommodation request.” Def. Br. at 35. North Memorial then argues it would have been an undue hardship to exempt Sure-Ondara from her Friday night shift at the hospital because accommodating her would have “run contrary” to the collective bargaining agreement and imposed more than a de minimis cost on her coworkers and North Memorial. Def. Br. at 36.
First, the EEOC did not make a cause or a no-cause finding on any failure-to-accommodate claim. The EEOC Letter of Determination (LOD) does not indicate the Commission understood Sure-Ondara’s charge was alleging a failure-to-accommodate claim, in addition to a retaliatory rescission of a job offer. The LOD states only, “I have determined that the evidence obtained during the course of the investigation establishes reasonable cause to believe the Respondent discriminated against the Charging Party when Respondent retaliated against Charging Party for requesting reasonable accommodation by rescinding the job offer in violation of Title VII.” JA-122. There is no mention of any failure-to-accommodate claim. Id.
In any event, the standard courts apply in determining whether opposition is protected activity under Title VII is not whether an accommodation sought is reasonable. Instead, the employee must communicate opposition to a practice that she reasonably believes is unlawful. Barker, 513 F.3d at 834 (“We interpret [the opposition clause] to encompass actions that oppose employment actions that are not unlawful ‘as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.’”); see also Pye v. Nu Aire, Inc., 641 F.3d 1011, 1020 (8th Cir. 2011) (“This Court applies § 2000e-3(a) broadly to cover opposition to ‘employment actions that are not unlawful, as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.’”); Bonn v. City of Omaha, 623 F.3d 587, 591 (8th Cir. 2010) (quoting Barker, 513 F.3d at 834).
Scruggs v. Pulaski County, 817 F.3d 1087 (8th Cir. 2016), heavily relied upon by North Memorial (Def. Br. at 1, 35, 37), does not support its argument that Sure-Ondara failed to engage in protected activity. Scruggs was a disability discrimination and retaliation case brought under the ADA and § 504 of the Rehabilitation Act. 817 F.3d at 1091. This Court held that the accommodation Scruggs sought—an additional week of unpaid leave to obtain a Family and Medical Leave Act release without a lifting restriction—was unreasonable, and that Scruggs was not a qualified individual with a disability because she could not perform her job with or without accommodation. Id. at 1093.
This Court has held repeatedly that, “[a]n individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.” Kirkeberg, 339 F.3d at 907 (quoting Heisler, 339 F.3d at 632); Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013) (plaintiff must have a good faith belief requested accommodation appropriate); see also Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999) (plaintiff must have a reasonable, good-faith belief employer engaged in discriminatory activity). But in Scruggs, instead of applying this standard, the Court held that “Scruggs’s request for additional time to obtain a new FMLA certification was not a reasonable accommodation, and therefore it was not protected activity.” Id. at 1094 (citing Kirkeberg, 619 F.3d at 907-08).
Because Scruggs does not apply the reasonable, good-faith-belief standard in its analysis of the plaintiff’s retaliation claim, it does not inform the legal question at issue here. Scruggs does not purport to overrule Kirkeberg, Hill, or Amir, nor could it. “It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002); see also Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (quoting T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006) (internal citation omitted) (“We definitively rule today, in accordance with the almost universal practice in other federal circuits, that when faced with conflicting panel opinions, the earliest opinion must be followed ‘as it should have controlled the subsequent panels that created the conflict.’”).
In arguing that “the unreasonableness of Sure-Ondara’s request is fatal to her retaliation claim,” Def. Br. at 37, North Memorial conflates the question of whether Sure-Ondara was opposing what she reasonably believed was an unlawful action with an analysis of whether North Memorial violated Title VII when it refused her requested accommodation—an issue not in this case. See Def. Br. at 35-37. Undue hardship is a defense to liability in a claim that the employer has unlawfully failed to accommodate an employee’s religion. There is no failure-to-accommodate claim in this case and no record developed regarding undue hardship. The fact issues North Memorial raises would be relevant to an undue hardship defense, but have no bearing on the Commission’s retaliation claim.
Regardless, Sure-Ondara’s request to be exempt from the Friday night shift is not unreasonable as a matter of law. In the ADA failure-to-accommodate context, the Supreme Court explained that lower courts reconcile “reasonable accommodation” and “undue hardship” in a practical way by holding that to defeat summary judgment, a plaintiff need only show that an accommodation “seems reasonable on its face, i.e., ordinarily or in the run of cases,” and once the plaintiff makes this showing, the employer has the burden to show undue hardship focusing on the hardships imposed in the employer’s operations. U.S. Airways v. Barnett, Inc., 535 U.S. 391, 401-02 (2002). Shift changes are quintessential examples of reasonable accommodation requests. 42 U.S.C. § 12111(9)(B) (“reasonable accommodation” may include “job restructuring” and “modified work schedules”). And the record supports a finding that Sure-Ondara had a reasonable belief she was entitled to the accommodation sought. She testified, “I didn’t know [having to work the Friday night shift] was written in stone,” and that in a prior job, “there were other Sabbath-keepers . . . who had requests for Sabbath accommodations.” JA-255 (Sure-Ondara Dep.191).
To establish a prima facie case of retaliation, the Commission had to show (1) Sure-Ondara engaged in protected conduct; (2) she suffered a materially adverse action; and (3) the materially adverse action was causally linked to the protected conduct. Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1077-78 (8th Cir. 2010). After the Commission establishes a prima facie case, the burden shifts to North Memorial to articulate a legitimate nonretaliatory reason for its action. Id. at 1078. The burden then shifts back to the Commission to offer evidence to prove pretext, “the ultimate question being whether a ‘prohibited reason, rather than the proffered reason, actually motivated the employer’s action.’” Id. (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)).
The district court only ruled that Sure-Ondara’s request for a religious accommodation was not protected activity. Nonetheless, North Memorial argues at length that the Commission “cannot demonstrate that North Memorial’s justification for its actions is pretextual.” Def. Br. at 38. North Memorial says it revoked Sure-Ondara’s job offer “because it was legitimately and sincerely concerned that, if hired, Sure-Ondara could not be counted on to work her designated shifts.” Def. Br. at 38-39.
When the evidence is assessed in the light most favorable to the Commission, a jury could choose not to believe North Memorial’s assertion that it withdrew Sure-Ondara’s job offer because she was unlikely to report for her Friday night shift.[3] Sure-Ondara told North Memorial repeatedly she would take the job with or without the accommodation. JA-249, 253 (Sure-Ondara Dep. 167, 181-82); JA-146 (Sure-Ondara 11/20/13 email). She testified that she had made peace with working on her Sabbath and planned to donate some of her earnings to her church. JA-250 (Sure-Ondara Dep. 169-70).[4] She testified, “I told [North Memorial] that I would work. I didn’t tell them that I would donate the money to the church because I didn’t need to, to tell them that.” JA-250 (Sure-Ondara Dep. 170).
Additionally, there is evidence that North Memorial’s human resources staff was disgruntled that Sure-Ondara asked for the accommodation when the position required weekend work. During Sure-Ondara’s first conversation about the accommodation with human resources receptionist Lindsey Clements, Clements asked her whether she had told the human resources generalist about her need for an accommodation, raising an inference that she may not have been offered the job if she had. JA-84 (Clements Dep. 25-26). When Minshull initially spoke to Sure-Ondara, before North Memorial had investigated whether the accommodation was possible and before the decision was made to withdraw the offer, Minshull said that she might need to find someone else for the job. JA-248, 249, 252, 254 (Sure-Ondara Dep. 161, 168, 179, 186).
Wombacher’s comments in his communications with Sure-Ondara suggest similar annoyance with Sure-Ondara’s request. Wombacher’s November 21, 2013, email states: “[A]s you were told multiple times during the interview process[,] this position requires you to work every other weekend. The confusion that we have is that after we offered you the position, you accepted, and then several days later you stated you could not work Friday nights.” JA-118. Wombacher’s statements suggest that he thought Sure-Ondara should not have accepted the job or asked for the accommodation after being told the scheduling requirements.
North Memorial’s conflicting explanations for why it believed Sure-Ondara was unlikely to report for her Friday night shifts further cast doubt on the legitimacy of this reason for withdrawing Sure-Ondara’s offer. North Memorial argues in its brief that Sure-Ondara did not actually need an accommodation because of a legitimate religious conflict and instead made the request because she “simply preferred not to” work on Friday nights as a secular convenience. Def. Br. at 33. If Sure-Ondara “simply preferred not to” come to work on Friday nights for what North Memorial suggests is a trivial, secular reason, then its assertion that it withdrew Sure-Ondara’s offer because it feared she would fail to report for her Friday night shift is implausible, particularly given that North Memorial viewed her as a “great [advanced-beginner] candidate.” JA-140 (Advanced Beginner Position Interview Form).
Finally, North Memorial argues, incredibly, “there is no evidence in the record that allows a reasonable jury to infer causation.” Def. Br. at 41. To establish causation, the evidence must show that “but for” a retaliatory motive, the employer would not have taken the adverse action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).
There is easily sufficient evidence to allow a jury to find causation in this case. Sure-Ondara asked to be exempt from the Friday night shift on November 13, 2013. JA-350 (Minshull Dep. 21). North Memorial withdrew her job offer on November 20, 2013, one week after her request for a religious accommodation. JA-145 (Wombacher 11/20/13 letter). See Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012) (temporal proximity between the protected conduct and adverse action “must be very close” for timing alone to be sufficient); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (where employee’s family leave began on January 1 and employer discharged the employee on January 14, court stated these “two events are extremely close in time” and concluded temporal proximity was sufficient to establish causation).
Moreover, Wombacher’s November 20, 2013, letter to Sure-Ondara specifically references her request for religious accommodation as the reason for North Memorial’s rescission of her job offer. JA-145. And Wombacher’s November 21, 2013, email responding to Sure-Ondara states that, “altering your schedule is conflicting with your orientation into this position . . . although you state you’re willing to work without accommodation, the conflicting statements you have made regarding ‘making it work’ lead us to believe otherwise.” JA-147. This evidence is manifestly sufficient to establish causation.
For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4718
julie.gantz@eeoc.gov
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,961 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4718
julie.gantz@eeoc.gov
Dated: January 9, 2018
I, Julie L. Gantz, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 9th day of January 2018. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 9th day of January 2018, to counsel of record.
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4718
julie.gantz@eeoc.gov
[1] Butler, cited by the Tenth Circuit in Selenke, notes that the ADA “expressly prohibits” retaliation, quoting the language of both § 12203(a) and § 12203(b) in the same paragraph. 172 F.3d at 751-52.
[2] The Kirkeberg Court did not engage in extensive analysis of the statute, presumably because the defendant never questioned the fact that the plaintiff engaged in protected activity, but instead argued only that Kirkeberg failed to offer sufficient evidence of causation or retaliatory animus. See Br. of Def.-Appellee, No. 09-1422, 2009 WL 1512928 (8th Cir. May 18, 2009).
[3] North Memorial argues that Sure-Ondara’s testimony and the testimony of her best friend “demonstrate that North Memorial’s concerns were well-founded.” Def. Br. at 40. Asneth Omare testified that working the Sabbath “was not something she would do.” JA-96 (Omare Dep. 32). But Omare also testified that she “didn’t know” if Sure-Ondara “intended to work on the Sabbath at North Memorial.” JA-97 (Omare Dep. 61). North Memorial fails to cite to anything in the record that “demonstrate[s]” as a matter of law that North Memorial’s “concerns were well-founded.” Def. Br. at 40.
[4] North Memorial again mischaracterizes the record when it alleges Sure-Ondara said only that she “would make it work.” Def. Br. at 5, 7, 39-40 n.11. This contention is once again belied by the record. See EEOC Br. at 5-6 (citing record); see also JA-248, 253, 255 (Sure-Ondara Dep. 163, 182-83, 189-90). In making this assertion, North Memorial omits the evidence that Sure-Ondara told Wombacher and Minshull that she would take the job without accommodation and come in on Friday nights. See Def. Br. at 39 n.11.