Jason Small v. Memphis Light, Gas & Water

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0082p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JASON SMALL, ┐

Plaintiff-Appellant, │

│

> No. 19-5710

v. │

│

│

MEMPHIS LIGHT, GAS AND WATER, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

or the Western District of Tennessee at Memphis.

No. 2:17-cv-02118—Sheryl H. Lipman, District Judge.

Decided and Filed: March 12, 2020

Before: DAUGHTREY, KETHLEDGE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Maureen T. Holland, Yvette Kirk, HOLLAND & ASSOCIATES, Memphis,

Tennessee, for Appellant. Rodrick D. Holmes, Brooks E. Kostakis, Aubrey B. Gulledge,

BOYLE BRASHER LLC, Memphis, Tennessee, for Appellee.

The court delivered a PER CURIAM opinion. THAPAR, J. (pp. 7–11), delivered a

separate concurring opinion in which KETHLEDGE, J., joined.

_________________

OPINION

_________________

PER CURIAM. Jason Small claims that his employer, Memphis Light, Gas and Water,

violated federal disability and civil-rights law when it reassigned him to a new position. The

district court rejected his claims as well as his motion to enforce an alleged settlement

agreement. We affirm.

No. 19-5710 Small v. Memphis Light, Gas & Water Page 2

I.

For over a decade, Small worked as an electrician at Memphis Light. But in early 2013,

he suffered an on-the-job injury that required him to change positions. At first, Small expressed

interest in a position as a revenue inspector. Instead, Memphis Light offered him a position as a

service dispatcher. Without another offer—and at the risk of otherwise being terminated—Small

accepted the dispatcher position.

Around the same time, Small raised concerns with Memphis Light that his new position

would conflict with the practice of his religion (Jehovah’s Witness). Small explained that he had

services on Wednesday evenings and Sundays and that he had community work on Saturdays.

He asked the company to reassign him to a different position or to different shifts. But Memphis

Light denied the request, explaining that the accommodations would impose an undue hardship

on the company and that its union required shifts be assigned based on seniority. Instead, the

company suggested that Small swap shifts with his co-workers or use paid time off. Small

renewed the same request without success. Yet later, Memphis Light reconsidered its decision

and offered Small the option to “blanket swap” shifts—meaning that he could swap his shifts

with another employee for an entire quarter.

Since then Small has remained in the dispatcher position. The parties dispute whether his

schedule still conflicts with his religious commitments.

In 2017, Small sued Memphis Light for disability and religious discrimination as well as

retaliation. On the eve of trial, the district court granted summary judgment to the company.

Almost immediately, Small filed a motion with the district court to enforce an alleged

settlement agreement between the parties. According to Small, the parties had agreed on a

settlement right before the summary judgment ruling. But the district court rejected the motion,

finding that the parties had never agreed on all the material terms. This appeal followed.

No. 19-5710 Small v. Memphis Light, Gas & Water Page 3

II.

A.

Small first challenges the district court’s grant of summary judgment. We review that

decision de novo. Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018).

Disability Discrimination. To begin with, Small argues that Memphis Light

discriminated against him based on his disability when it refused to offer him a position as a

revenue inspector. But Memphis Light has offered a legitimate, non-discriminatory reason for

its decision: namely, that Small physically could not do the work of an inspector. See, e.g.,

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 4 (D.C. Cir. 2010). To rebut

that explanation, Small must offer evidence that the company’s stated reason was pretextual.

Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016).

Small contends that Memphis Light has presented shifting accounts of who determined he

could not do the work of an inspector—a disability committee or an HR employee, Eric Conway.

This suggests (he says) that the company has concealed the true reasons for its decision. For

instance, Small stresses that Conway claimed to have made the final decision to reassign Small

to a new position. Yet as Conway himself explained, the disability committee (on which he sat)

determined whether Small physically could do the work; Conway then determined where to

reassign him. Small offers no evidence to the contrary. Small also questions whether Memphis

Light even had a disability committee. But multiple members of the committee confirmed that it

existed and that it determined whether Small could do the work of an inspector. Again, Small

cannot beat this evidence with nothing. See Cripe v. Henkel Corp., 858 F.3d 1110, 1113 (7th

Cir. 2017); Wysong v. City of Heath, 260 F. App’x 848, 858 (6th Cir. 2008).

Small further points to various company policies that, he says, gave him a “right” to be

reassigned to a different position. But Small never explains how these policies show that the

company’s reason for not reassigning him to a particular position was pretextual. And for what

it is worth, he has not identified any other open positions for which he was qualified. Cf.

Henschel v. Clare Cty. Rd. Comm’n, 737 F.3d 1017, 1025 (6th Cir. 2013) (explaining that

companies need not create new positions for disabled employees).

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Finally, Small says that there are factual disputes about whether he could do the work of

an inspector. But the question is not whether Memphis Light was correct that Small could not do

the work. Rather, it is whether the company “honestly believed” that to be the case at the time.

Ferrari, 826 F.3d at 895. And Small has not offered any evidence that casts doubt on the

company’s honest belief. Hence he cannot show pretext.

Aside from pretext, Small argues in his reply brief that Memphis Light failed to

accommodate his disability and that the district court evaluated this claim under the wrong legal

standard. But Small forfeited this argument—which involves an entirely different theory of

liability—when he did not raise it in his opening brief. See United States v. Carson, 560 F.3d

566, 587 (6th Cir. 2009); see also Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir.

2018) (explaining the importance of distinguishing between these theories of liability because

they involve entirely different frameworks). To hold otherwise would allow the appealing party

to raise new issues to which the other party could not respond—as happened here. See, e.g.,

Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015); Gen. Elec. Co. v.

Jackson, 610 F.3d 110, 123 (D.C. Cir. 2010).

Religious Discrimination. Small next argues that Memphis Light discriminated against

him when it failed to accommodate his religion. But the company did not have to offer any

accommodation that would have imposed an “undue hardship” on its business—meaning

(apparently) anything more than a “de minimis cost.” Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 84 (1977); Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). Memphis Light

says that additional accommodations would have impeded the company’s operations, burdened

other employees, and violated its seniority system. Our court has found similar costs to be more

than de minimis. See Virts v. Consol. Freightways Corp. of Del., 285 F.3d 508, 517–21 (6th Cir.

2002); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1380 (6th Cir. 1994). And in any event, Small

has not challenged whether the accommodations would have imposed an undue hardship on the

company—beyond a passing assertion in his brief. Instead, he argues only about whether the

company did accommodate his religious beliefs. See, e.g., Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60, 68–69 (1986) (distinguishing these issues); Cooper, 15 F.3d at 1379–80 (same).

No. 19-5710 Small v. Memphis Light, Gas & Water Page 5

Hence this claim cannot proceed. See White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d

842, 854 (6th Cir. 2010).

In the alternative, Small argues that Memphis Light subjected him to a hostile work

environment. But Small has not offered any evidence that the harassment he experienced (if

any) was because of his religion. So this argument fails from the outset. See Hafford v. Seidner,

183 F.3d 506, 512 (6th Cir. 1999).

Retaliation. Small also argues that Memphis Light retaliated against him because he

complained about the alleged discrimination. But again, Small has not offered any evidence that

the retaliation he experienced (if any) was because of his complaints. So this argument fares no

better. See Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 471–72 (6th Cir. 2012).

B.

Small also challenges the district court’s refusal to enforce an alleged settlement

agreement between the parties. We review the court’s finding that the parties had never reached

an agreement for clear error. Therma-Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 418–19 (6th

Cir. 2000).

Small first argues that the parties had formed a binding settlement agreement. To form a

binding agreement, the parties had to agree on all the material terms. Brock v. Scheuner Corp.,

841 F.2d 151, 154 (6th Cir. 1988); see also Sweeten v. Trade Envelopes, Inc., 938 S.W.2d 383,

385 (Tenn. 1996). The record shows that Memphis Light made its final settlement offer to Small

on a Friday around noon. Among other things, that offer required Small to agree to a non-

disparagement provision. Within minutes, Small’s counsel responded that her client could not

agree to a non-disparagement provision because it might bar him from filing future claims. She

also said that she would talk to Small about the offer. Memphis Light soon acknowledged her

response with an “O.K. Thanks.” The company followed up a few hours later asking for an

update on its offer. Small’s counsel responded, “Not yet.” She explained that she could not talk

to Small because he was in a mandatory meeting. Finally, two hours later—after no further

emails—Memphis Light revoked its offer.

No. 19-5710 Small v. Memphis Light, Gas & Water Page 6

Given this evidence, it almost goes without saying that the parties never agreed on all the

material terms. Memphis Light insisted on a non-disparagement provision; Small resisted that

provision. Nothing in the record suggests that the district court erred—let alone clearly so—

when it found that the parties had not reached an agreement. See Therma-Scan, 217 F.3d at 420.

Small also argues that Memphis Light promised to keep its settlement offer open until the

district court issued a summary judgment ruling. Yet Small offers no evidence of such a

promise. Instead, he offers evidence that the company warned that it would revoke its offer if

the court issued a ruling. And he says that his counsel understood this to be a promise to keep

the offer open. But none of this amounts to an actual promise to keep the offer open. So this

argument fails too. See Safeco Ins. Co. of Am. v. City of White House, 36 F.3d 540, 548 (6th Cir.

1994) (explaining that, under Tennessee law, an offeror ordinarily may withdraw an offer at any

time before acceptance).

We affirm.

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_________________

CONCURRENCE

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THAPAR, Circuit Judge, concurring. Almost fifty years ago, Congress struck a balance

between the rights of religious employees and the interests of their employers. According to that

compromise, companies must accommodate religious practices and beliefs unless doing so

would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C.

§ 2000e(j). To be sure, Congress codified this requirement “somewhat awkwardly” in Title

VII’s statutory definition of “religion.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n.1

(1986). And Congress failed to specify exactly what it meant by “undue hardship.” But most

likely, everyone assumed that courts would clarify this standard over time, using the traditional

tools of statutory interpretation.

So what do those tools tell us? Well, start with the text. Congress didn’t define the term

“undue hardship,” so we should give that term its ordinary, contemporary meaning. See, e.g.,

Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014). Dictionaries from the period define a

“hardship” as “adversity,” “suffering” or “a thing hard to bear.” The American Heritage

Dictionary of the English Language 601 (1969); Black’s Law Dictionary 646 (5th ed. 1979);

Webster’s New Twentieth Century Dictionary of the English Language 826 (2d ed. 1975). On its

own terms, then, the word “hardship” would imply some pretty substantial costs.

But Congress didn’t leave matters there. Instead, it specified that the “hardship” must be

“undue.” See, e.g., Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455 (7th Cir. 2013)

(“Title VII requires proof not of minor inconveniences but of hardship, and ‘undue’ hardship at

that.”); Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978);

Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975). That means that the

hardship must “exceed[] what is appropriate or normal”; in short, it must be “excessive.” The

American Heritage Dictionary of the English Language 1398; Black’s Law Dictionary 1370;

Webster’s New Twentieth Century Dictionary of the English Language 826. So together the

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phrase “undue hardship” tell us that the accommodation must impose significant costs on the

company.

Not surprisingly, Congress has typically defined “undue hardship” in exactly this way.

Take the Americans with Disabilities Act, which (like Title VII) requires companies to provide

reasonable accommodations unless doing so would impose an “undue hardship” on their

business. 42 U.S.C. § 12112(b)(5)(A). In that context, Congress defined an “undue hardship” as

“an action requiring significant difficulty or expense” in light of certain enumerated factors (such

as the size of the company). Id. § 12111(10). Nor does the meaning of “undue hardship” change

if one ventures further afield in the United States Code. See, e.g., 28 U.S.C. § 1869(j)

(explaining that an “undue hardship or extreme inconvenience” for jury service means “great

distance . . . from the place of holding court,” “grave illness in the family,” or “any other

emergency which outweighs in immediacy and urgency the obligation to serve as a juror”); 29

U.S.C. § 207(r)(3) (explaining that an “undue hardship” under the Fair Labor Standards Act

means “significant difficulty or expense”); 38 U.S.C. § 4303(15) (explaining that an “undue

hardship” for veteran employment means “significant difficulty or expense”).

Or consider how courts define “undue hardship” when Congress has failed to provide a

statutory definition. For instance, the Bankruptcy Code allows debtors to discharge a student

loan if they can show that the debt imposes an “undue hardship.” 11 U.S.C. § 523(a)(8). “The

plain meaning” of that term, courts have said, requires the debtor to show that the debt imposes

“intolerable difficulties . . . greater than the ordinary circumstances that might force one to seek

bankruptcy relief.” In re Thomas, 931 F.3d 449, 454 (5th Cir. 2019). Indeed, “the adjective

‘undue’ indicates that Congress viewed garden-variety hardship as [an] insufficient excuse[.]” In

re Frushour, 433 F.3d 393, 399 (4th Cir. 2005) (quoting In re Rifino, 245 F.3d 1083, 1087 (9th

Cir. 2001)). And the same holds true when courts consider (or use) the phrase “undue hardship”

in other contexts. See, e.g., Teamsters Local Union No. 171 v. N.L.R.B., 863 F.2d 946, 957 (D.C.

Cir. 1988) (explaining that an “undue hardship” requires “significant mitigating circumstances”);

In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1241 (5th Cir. 1982) (explaining that

an “undue hardship” might exist when there is an “unusual expense”).

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Given all this, one would think that the term “undue hardship” would have a similar

meaning under Title VII. After all, courts typically try “to make sense rather than nonsense out

of the corpus juris.” Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991). But the Supreme

Court has said otherwise.

The source of the problem is Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

That decision primarily addressed whether Title VII’s accommodation provision required

employers to violate seniority systems created by their collective-bargaining agreements. See id.

at 78–84. But in two brief paragraphs at the end of the opinion, the Court also asserted—almost

as an afterthought—that requiring an employer “to bear more than a de minimis cost” in order to

accommodate an employee’s religion would be “an undue hardship.” Id. at 84. The cost found

to be more than de minimis: $150. Id. at 92 n.6 (Marshall, J., dissenting). And the employer

unduly burdened by that cost: one of the largest airlines in the world.

At this point, you might be wondering where the “de minimis” test even came from?

Certainly not the text of Title VII. The Hardison majority never purported to justify its test as a

matter of ordinary meaning. And how could it? “De minimis” means a “very small or trifling

matter[.]” Black’s Law Dictionary 388. That seems like the opposite of an “undue hardship.”

See Hardison, 432 U.S. at 92 n.6 (Marshall, J., dissenting) (“I seriously question whether simple

English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’”).

The “de minimis” test also seems in conflict with the background legal maxim de minimis non

curat lex (“the law does not care for trifling matters”). Wisconsin Dep’t of Revenue v. William

Wrigley, Jr., Co., 505 U.S. 214, 231 (1992); Black’s Law Dictionary 388. The law usually does

not care for trifling matters but apparently Title VII does.

Nor can one blame the parties in Hardison. None of them proposed the “de minimis”

test—and probably for good reason. In fact, most of their briefing focused on other issues in the

case.

As best one can tell, the Hardison majority adopted the “de minimis” test for two

reasons: one explicit and one implicit. As for the explicit reason, the majority said that religious

accommodations that involved more than “de minimis” costs would cause employers to

No. 19-5710 Small v. Memphis Light, Gas & Water Page 10

“discriminate” against their non-religious employees. See Hardison, 432 U.S. at 84–85. But that

reasoning seems unreasonable on its face. Consider again the Americans with Disabilities Act,

which requires employers to provide accommodations to their disabled employees. No right-

minded person would call such accommodations a form of impermissible discrimination against

non-disabled employees. Cf. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002); see also

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (“But Title VII does

not demand mere neutrality with regard to religious practices—that they be treated no worse than

other practices. Rather, it gives them favored treatment[.]”).

As for the implicit reason—acknowledged only by the Hardison dissent—the majority

may have construed Title VII so narrowly because it feared that a broader reading might run

afoul of the Establishment Clause. See Hardison, 432 U.S. at 89–90 (Marshall, J., dissenting).

Yet whatever doctrinal merit that concern once may have had, I seriously doubt that it remains

valid. Even properly read, Title VII doesn’t require employers to provide any and all

accommodations; it requires them to provide only those accommodations that won’t impose an

“undue hardship” on the company—meaning significant costs. That seems more than fine under

the Establishment Clause. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722–24 (2005); Estate of

Thornton v. Caldor, Inc., 472 U.S. 703, 711–12 (1985) (O’Connor, J., concurring); Michael W.

McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo.

Wash. L. Rev. 685, 704 (1992); see generally Mark Storslee, Religious Accommodation, the

Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871 (2019) (challenging the

theory that religious accommodations violate the Establishment Clause whenever they impose

more than de minimis costs).

In any event, the doctrine of constitutional avoidance doesn’t give courts license to

rewrite a statute. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). But the Hardison

majority appears to have done exactly that. The only other explanation is that the majority

stumbled through the looking glass and into “an Alice-in-Wonderland world where words have

no meaning[.]” Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring in the

judgment).

No. 19-5710 Small v. Memphis Light, Gas & Water Page 11

Of course, all this does not mean that employers must always accommodate their

employees’ religious beliefs and practices. The term “undue hardship” makes clear “that this is a

field of degrees, not a matter for extremes” or “absolutes.” E.E.O.C. v. Firestone Fibers &

Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008); cf. Barnett, 535 U.S. at 402. But Hardison itself

adopted an “absolute” when it “effectively nullifi[ed]” the accommodation requirement.

Hardison, 432 U.S. at 89 (Marshall, J., dissenting). And without any real reason.

The irony (and tragedy) of decisions like Hardison is that they most often harm religious

minorities—people who seek to worship their own God, in their own way, and on their own

time. See McConnell, supra, at 693, 721–22; Storslee, supra, at 873–74, 877. The American

story is one of religious pluralism. The Founders wrote that story into our Constitution in its

very first amendment. And almost two-hundred years later, a new generation of leaders sought

to continue that legacy in Title VII. But the Supreme Court soon thwarted their best efforts.

Even at the time, this “ultimate tragedy” was clear. Hardison, 432 U.S. at 97 (Marshall, J.,

dissenting) (“[O]ne of this Nation’s pillars of strength our hospitality to religious diversity has

been seriously eroded.”).

In the end, this case doesn’t involve a challenge to the “de minimis” test. Indeed, Jason

Small hasn’t even contested—at least in a meaningful way—his employer’s claim of “undue

hardship.” But litigants should consider such challenges going forward. See Patterson v.

Walgreen Co., 140 S. Ct. 685 (2020) (Alito, J., concurring in the denial of certiorari). As the

Hardison dissent explained, “All Americans will be a little poorer until [the] decision is erased.”

Hardison, 432 U.S. at 97 (Marshall, J., dissenting).