Walden v. Centers for Disease Control & Prevention

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 10–11733 FEB 7, 2012

________________________ JOHN LEY

CLERK

D.C. Docket No. 1:08-cv-02278-JEC

MARCIA WALDEN,

lllllllllllllllllllll Plaintiff - Appellant,

versus

CENTERS FOR DISEASE CONTROL AND PREVENTION,

COMPUTER SCIENCES CORPORATION,

CHRISTIE ZERBE,

Centers for Disease Control and Prevention Project Officer for

Occupational Health and Preventive Services,

in her individual and official capacities,

L. CASEY CHOSEWOOD,

Director of the Office of Health and Safety at the

Centers for Disease Control and Prevention,

in his individual and official capacities,

lllllllllllllllllllll Defendants - Appellees,

JOHN DOE,

Centers for Disease Control and Prevention Official,

in his individual and official capacities,

Defendant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(February 7, 2012)

Before TJOFLAT, WILSON and SEYMOUR,* Circuit Judges.

SEYMOUR, Circuit Judge:

Marcia Walden brought this action against Computer Sciences Corporation

(“CSC”), the Centers for Disease Control and Prevention (“CDC”), and two CDC

employees, Dr. Casey Chosewood and Christie Zerbe. Ms. Walden alleged that all

defendants violated her free exercise rights under the First Amendment and the

Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq.

She also alleged that CSC violated her rights under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted summary

judgment in favor of all defendants on all claims. We affirm.

I.

CDC is a federal agency based in Atlanta, Georgia, where it has over 6,000

*

Honorable Stephanie K. Seymour, United States Circuit Judge for the Tenth Circuit,

sitting by designation.

2

employees. It maintains an Employee Assistance Program (“EAP”), which

provides health and wellness services to its employees.

At all times relevant to this litigation, CSC administered CDC’s EAP

pursuant to a contract. CSC managed and staffed the CDC clinics located in

Atlanta, but CDC’s approval was required for all EAP counselor positions. Under

the EAP contract, CDC could request the immediate removal of an EAP employee

from the program. Specifically, the contract stated:

The Contracting Officer may . . . require the Contractor to

immediately remove any contract employee from the on-site facility

should it be determined that the individual who is being assigned to

duty has been disqualified for suitability reasons, or who is found to

be unfit for performing duties during their tour(s) of duty.

Rec., doc. 85-6 at 59.

In February 2006, CSC hired Ms. Walden to work as an EAP counselor at

CDC. Ms. Walden agreed to be bound by the EAP Guidelines and Procedures,

which require that EAP services be made available to all CDC employees located

at Atlanta area facilities “regardless of the nature of their personal or

organizational issues related to work or life.” Id., doc. 74-7 at 3. CSC policies

also required Ms. Walden to adhere to principles of inclusion and diversity.

Ms. Walden describes herself as “a devout Christian who believes that it is

immoral to engage in same-sex sexual relationships.” Id., doc. 1 at 1–2. She

3

further believes that her religion prohibits her from encouraging or supporting

same-sex relationships through counseling, meaning that she may not provide

relationship counseling to individuals in same-sex relationships.

In July 2006, after referring a gay client to an outside counselor, Ms.

Walden discussed the conflict between her religious beliefs and her job

responsibilities with her supervisor, Gordon Hughes, who was also CSC’s EAP

director. According to Ms. Walden, Mr. Hughes stated that he was comfortable

counseling gay clients, but provided no guidance with respect to how she should

handle future conflicts created by her religious beliefs.

On August 21, 2007, Ms. Walden began an initial intake counseling session

with a CDC employee, referred to herein as “Jane Doe.” Ms. Doe told Ms.

Walden she had been involved in a same-sex relationship for eighteen years, she

and her partner were raising a son who was then eight years old, and her partner

had forged Ms. Doe’s name in order to obtain lines of credit. Ms. Doe was very

upset and explained she did not know whether she could trust her partner again.

Concluding that Ms. Doe’s need for same-sex relationship counseling

conflicted with her religious beliefs, Ms. Walden told Ms. Doe that she could not

provide her counseling because of Ms. Walden’s “personal values.” Id., doc. 82 at

87. Ms. Walden explained:

4

I looked at her, and I told her that I could see she was in pain, and I

wanted to make sure she got help. But after hearing what she had to

say, based on my personal values, I recognized I was not the best

counselor for her. . . . I also told her that I realized that my personal

values would interfere with our client/therapist relationship, and that

wasn’t fair to her.

Id. at 86–87. Ms. Walden did not say anything about her religion or religious

beliefs to Ms. Doe and referred her to a colleague for counseling.

Ms. Doe was upset by how Ms. Walden had handled the intake session and

referral. She felt “judged and condemned” by Ms. Walden’s explanation for why

she couldn’t counsel her, and she also felt that Ms. Walden’s nonverbal conduct

communicated disapproval of her relationship. Id., doc. 107 at 17–18. As a result,

Ms. Doe contacted Mr. Hughes to complain about Ms. Walden’s treatment of her.

Mr. Hughes subsequently discussed Ms. Doe’s complaint with Ms. Walden.

Through these discussions, Ms. Walden learned that Ms. Doe had complained

about her and had called her homophobic. Ms. Walden reiterated to Mr. Hughes

that she could counsel gay and lesbian individuals but her religious beliefs

prohibited her from providing relationship counseling to individuals in same-sex

relationships. In response, Mr. Hughes suggested that when Ms. Walden had such

a conflict in the future, she could tell a client seeking same-sex relationship advice

that she was inexperienced with relationship counseling, rather than stating that

5

her personal values required her to refer the client to a colleague. Ms. Walden

refused to use this approach, and told him, “I couldn’t say that I don’t have

relationship experience, because I would be lying to the client.” Id., doc. 82 at

101. Mr. Hughes made this proposal to Ms. Walden several times in subsequent

discussions, but Ms. Walden continued to reject this alternative approach as

dishonest. Neither she nor Mr. Hughes ever suggested other possible approaches.

Through later discussions with several ministers, she ultimately decided she could

perhaps tell clients like Ms. Doe, “I don’t have experience in this matter,” or “I’m

not experienced in gay relationships.” Id. at 111. But she never mentioned these

alternatives to CSC. When Ms. Walden was asked in her deposition how she

could have used this alternative approach, she explained:

You asked me the question of whether or not I could say

whether I had experience, or – to refer someone because I wasn’t an

expert in a particular matter.

Most likely, the client would follow up with the question,

asking me, “Well, what matter?” And then I would be led to say it,

that, “It’s . . . because I’m not experienced in gay/lesbian relationship

counseling.”

Id. at 115.

Mr. Hughes notified Doug Shelton, CSC’s program manager who oversaw

the company’s contract with CDC, about Ms. Walden’s referral of Ms. Doe and

Ms. Doe’s complaint. Mr. Shelton then contacted Dr. Chosewood, CDC’s

6

Director of Health and Safety, and advised him that he “should be aware of a

situation where Ms. Walden had told one of our CDC workers that she would not

be able to counsel her because of her religious objections to the patient’s issues

around her same-sex relationship.” Id., doc. 108 at 24. Mr. Shelton added that

“the employee was quite upset about that fact.” Id. Mr. Shelton assured Dr.

Chosewood that CSC would investigate the matter and that he would follow up

with more information.

While Dr. Chosewood understood that it might be necessary and appropriate

for counselors to make referrals due to religious conflicts, he was concerned about

the manner in which Ms. Walden had stated her objections to Ms. Doe’s life in

connection with her referral. Dr. Chosewood told Ms. Zerbe, the CDC project

officer responsible for managing the EAP contract, what had occurred. Ms. Zerbe

agreed that referrals might be necessary where a counselor confronted a

religiously-based conflict, but she feared that Ms. Walden’s approach to referring

Ms. Doe could undermine the EAP program’s effectiveness. She was also upset

that an individual seeking counseling “was made to feel worse” as a result of how

Ms. Walden handled the situation. Id., doc. 109 at 89.

Mr. Shelton asked Jackie Byrum, a CSC employee relations specialist, to

investigate the incident. During her investigation, Ms. Byrum spoke with Ms.

7

Walden and asked her the same questions that Mr. Hughes had asked, including

whether she would be willing to tell clients that her need to refer arose out of a

lack of experience with relationship counseling. Ms. Walden again replied that

she could not lie to her clients. Ms. Byrum told Ms. Walden, “[S]ometimes you

have to set aside your religious beliefs in the interest of the client.” Id., doc. 82 at

121. Ms. Byrum concluded from her discussions with Ms. Walden that it was not

an option for Ms. Walden “[t]o not disclose her religious and personal beliefs

because she felt that . . . would be dishonest.”1 Id., doc. 106 at 62.

While Ms. Byrum’s investigation was still ongoing, Mr. Shelton followed

up with Dr. Chosewood. Mr. Shelton advised him that although CSC had spoken

to Ms. Walden about referring employees without specifically mentioning her

religious objections or personal values, Ms. Walden “was not willing to change

the way she approached future situations.” Id., doc. 108 at 31. Dr. Chosewood

was surprised that Ms. Walden was unwilling to change her approach. He told

Mr. Shelton that he was concerned about Ms. Walden’s behavior, which he feared

would lead to similar incidents in the future.

1

In resolving the defendants’ motions for summary judgment, the district court assumed

that Ms. Walden did not insist on disclosing her religious beliefs to future clients, as opposed to

her “personal values” or “personal beliefs.” The district court instead assumed that Ms. Byrum

reached her conclusion because Ms. Walden repeatedly refused to say that she was inexperienced

in relationship counseling.

8

Following this conversation, and before CSC had completed its

investigation, Dr. Chosewood and Ms. Zerbe jointly decided to ask that Ms.

Walden be removed from the EAP contract, believing that Ms. Walden “wasn’t

willing to alter her approach.” Id. at 33. On August 30, Ms. Zerbe sent an email

to Mr. Shelton asking for Ms. Walden’s removal from the contract.

As required by the contract, CSC complied with CDC’s request and

removed Ms. Walden from the EAP. Mr. Shelton informed Ms. Walden she was

being laid off from her counseling job at CDC’s request. Because she was laid off

rather than terminated for cause, CSC provided Ms. Walden with resources to help

her find another job within the company. Specifically, her layoff letter encouraged

her to “seek other opportunities within CSC by using CSC CareerSource and the

Employee Reassignment Service.” Id., doc. 85-33 at 2. The layoff designation

allowed Ms. Walden to retain her tenure with CSC if she found a new position

with CSC within one year. At the time, CSC’s only counseling positions in the

Atlanta area were the EAP positions at CDC, although positions were available in

other cities. Ms. Walden logged onto CSC’s website at least once to see if there

were job openings, but she did not apply for a new position.

Ms. Walden filed this action in July 2008 against CSC, CDC, Ms. Zerbe,

and an unidentified CDC official, asserting four claims against all defendants – a

9

free exercise claim, a free exercise retaliation claim, a free speech retaliation

claim, and a RFRA claim. Ms. Walden also asserted a due process claim against

CDC, Ms. Zerbe, and the unidentified CDC official, and a Title VII religious

discrimination claim against CSC. She subsequently amended her complaint to

substitute Dr. Chosewood for the previously-unidentified defendant. With respect

to all of her claims, she sought damages as well as declaratory relief under the

Declaratory Judgment Act, 28 U.S.C. § 2201.

Following discovery, the parties filed cross-motions for summary judgment.

In its motion, CDC argued that an action for monetary damages arising from

constitutional violations and based on Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), does not lie

against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484–86, 114 S. Ct.

996, 1005–06 (1994). In response, Ms. Walden stated that she did not intend to

pursue any claims for monetary damages against CDC or against Dr. Chosewood

and Ms. Zerbe in their official capacities. Ms. Walden also expressly abandoned

her free exercise retaliation claim against CSC, her free speech retaliation claim,

and her due process claim.

The magistrate judge proposed in a report and recommendation that the

district court grant defendants’ motions for summary judgment. The district court

10

agreed and dismissed Ms. Walden’s claims. Ms. Walden now appeals.

II.

We review the district court’s decision de novo, viewing the evidence in the

light most favorable to Ms. Walden and drawing all inferences in her favor.

Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We may affirm the

district court’s grant of summary judgment on any legal ground supported by the

record, regardless of whether the district court relied on that ground. McCabe v.

Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994).

A. Claims Against CDC and Against Dr. Chosewood

and Ms. Zerbe in Their Official Capacities

Although Ms. Walden abandoned her claims for monetary damages against

CDC and against Dr. Chosewood and Ms. Zerbe in their official capacities, on

appeal she claims a right to seek declaratory relief under 28 U.S.C. § 2201 against

these defendants for allegedly violating her rights under the Free Exercise Clause

11

and RFRA. See Aplt. Reply Br. at 18. We hold that she lacks standing to do so.2

The Declaratory Judgment Act, 28 U.S.C. § 2201, “echoing the ‘case or

controversy’ requirement of [A]rticle III of the Constitution, provides that a

declaratory judgment may only be issued in the case of an ‘actual controversy.’”

Emory v. Peeler, 756 F.2d 1547, 1551–52 (11th Cir. 1985). “That is, under the

facts alleged, there must be a substantial continuing controversy between parties

having adverse legal interests.” Id. at 1552. “In order to demonstrate that a case

or controversy exists to meet the Article III standing requirement when a plaintiff

is seeking injunctive or declaratory relief, a plaintiff must allege facts from which

it appears there is a substantial likelihood that he will suffer injury in the future.”

Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)

(citing City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665

(1983)). “Injury in the past . . . does not support a finding of an Article III case or

2

In proceedings below, neither the magistrate judge nor the district court determined

whether Ms. Walden had standing to seek declaratory relief under 28 U.S.C. § 2201 against CDC

or against Dr. Chosewood and Ms. Zerbe in their official capacities. “Although neither side

raises the issue here, we are required to address the issue even if the courts below have not

passed on it, and even if the parties fail to raise the issue before us. The federal courts are under

an independent obligation to examine their own jurisdiction, and standing is perhaps the most

important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230–31, 110 S. Ct. 596, 607 (1990) (citations and internal quotation marks omitted) (alteration in

original); see also Arnold v. Martin, 449 F.3d 1338, 1341 (11th Cir. 2006) (per curiam)

(“Precedent obligates us to determine on our own initiative whether [the plaintiff] has

standing.”).

12

controversy when the only relief sought is a declaratory judgment.” Id. at 1348.

In this case, Ms. Walden’s claims for declaratory relief against CDC, and

against Dr. Chosewood and Ms. Zerbe in their official capacities, only seek relief

for a past injury. She does not allege that her religious rights continue to be

burdened or are likely to be burdened in the future. A declaration that these

defendants violated her rights in the past under the First Amendment and RFRA

“would [be] nothing more than a gratuitous comment without any force or effect.”

Id. (alteration in original) (citation and internal quotation marks omitted). Thus,

Ms. Walden fails to satisfy the “case or controversy” requirement of Article III and

the “actual controversy” requirement of 28 U.S.C. § 2201. Accordingly she

cannot seek declaratory relief against CDC or against Dr. Chosewood and Ms.

Zerbe in their official capacities.

B. Claims Against Dr. Chosewood and Ms. Zerbe

in Their Individual Capacities

We analyze Ms. Walden’s claims against Dr. Chosewood and Ms. Zerbe in

their individual capacities under the framework of qualified immunity.3 “The

3

Ms. Walden’s First Amendment claims against Dr. Chosewood and Ms. Zerbe seek

damages pursuant to Bivens, 403 U.S. 388, 91 S. Ct. 1999. In many respects, “[a] Bivens action

is analogous to § 1983 suits against state and local officers.” Smith ex rel. Smith v. Siegelman,

(continued...)

13

doctrine of qualified immunity protects government officials ‘from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). The

defense of qualified immunity applies not only to constitutional claims, but also to

claims brought for alleged violations of RFRA. See, e.g., Rasul v. Myers, 563

F.3d 527, 533 n.6 (D.C. Cir. 2009) (per curiam) (holding, in the alternative, that

federal officials were entitled to qualified immunity against claims brought for

violations of RFRA); cf. Tapley v. Collins, 211 F.3d 1210, 1214 (11th Cir. 2000)

3

(...continued)

322 F.3d 1290, 1297 n.15 (11th Cir. 2003). In Bivens, the Supreme Court held that a plaintiff

could bring a suit for damages against federal officials for violations of the plaintiff’s Fourth

Amendment rights. 403 U.S. at 397, 91 S. Ct. at 2005. The Supreme Court has extended Bivens

to allow damages actions under the Eighth and Fifth Amendments. See Carlson v. Green, 446

U.S. 14, 100 S.Ct. 1468 (1980); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264 (1979). Since

Carlson, however, the Court has repeatedly declined to imply a Bivens remedy in a variety of

contexts. See, e.g., Minneci v. Pollard, 10-1104, ___ S. Ct. ____, 2012 WL 43511, at *5–6 (Jan.

10, 2012) (collecting and summarizing cases). The Court has “rejected the claim that a Bivens

remedy should be implied simply for want of any other means for challenging a constitutional

deprivation in federal court.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69, 122 S. Ct. 515,

520 (2001). Because of our disposition of this case on other grounds, we need not decide

whether a Bivens claim is appropriate here. We therefore only assume without deciding that Ms.

Walden may seek a Bivens remedy for violations of the First Amendment’s Free Exercise Clause.

See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1948 (2009) (assuming, without

deciding, that a First Amendment Free Exercise Clause claim is actionable under Bivens). But

see Bush v. Lucas, 462 U.S. 367, 388–90, 103 S. Ct. 2404, 2416–17 (1983) (declining to create a

Bivens remedy against a federal official for a First Amendment violation arising in the context of

federal employment where administrative remedies existed).

14

(“[T]he Supreme Court has said that the defense of qualified immunity is so well

established, that if Congress wishes to abrogate it, Congress should specifically

say so.”); id. at 1215 n.9 (collecting cases holding that qualified immunity is a

defense to claims arising under various federal statutes).

We apply a two-prong test for determining whether an official is entitled to

qualified immunity. “First, a plaintiff must show that a constitutional or statutory

right has been violated. Second, a plaintiff must show that the right violated was

clearly established.” Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009)

(per curiam). Courts have discretion as to the order in which they address these

two prongs. Pearson, 555 U.S. at 236, 129 S. Ct. at 818.

1. Free Exercise

Ms. Walden contends the request by Dr. Chosewood and Ms. Zerbe that

CSC remove her from the EAP contract infringed on her right to free exercise of

her religion in violation of the First Amendment. She disputes the district court’s

holding that she failed to raise a genuine fact issue regarding whether Dr.

Chosewood or Ms. Zerbe removed her because of her religious need to refer

clients seeking same-sex relationship counseling to another counselor. She also

argues they did not engage in a reasonable investigation or act in good faith before

asking CSC to remove her from the EAP contract.

15

When the government acts as an employer, it has far broader powers than

the government acting as sovereign. Shahar v. Bowers, 114 F.3d 1097, 1110 (11th

Cir. 1997) (en banc). This is so because the government “has interests as an

employer in regulating the speech of its employees that differ significantly from

those it possesses in connection with regulation of the speech of the citizenry in

general.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734

(1968). “Government employers, like private employers, need a significant degree

of control over their employees’ words and actions; without it, there would be

little chance for the efficient provision of public services.” Garcetti v. Ceballos,

547 U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006) (citing Connick v. Myers, 461

U.S. 138, 143, 103 S. Ct. 1684, 1688 (1983)). Consequently, the government has

“broad discretion” to make employment decisions. Boyce v. Andrew, 510 F.3d

1333, 1341 (11th Cir. 2007) (per curiam). This discretion applies not only to the

government’s relationships with its employees, but also to its relationships with

independent contractors. See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 673,

116 S. Ct. 2342, 2346 (1996) (extending Pickering to independent contractors);

Shahar, 114 F.3d at 1102–03 (recognizing Umbehr held that Pickering provides

“the appropriate standard” for determining whether a government contractor’s free

speech rights were violated). As such, “absent contractual, statutory, or

16

constitutional restriction, the government is entitled to terminate [employees and

contractors] for no reason at all.” Umbehr, 518 U.S. at 674, 116 S. Ct. at 2347.

Nevertheless, where an employee or contractor’s free exercise rights are a

substantial or motivating factor in her termination, we evaluate her claim under the

balancing test originally provided in Pickering, 391 U.S. at 568, 88 S. Ct. at 1734.

Shahar, 114 F.3d at 1111 n.27. That is, we balance the First Amendment rights of

the employee or contractor against the interests of the government “as an

employer, in promoting the efficiency of the public services it performs through its

employees.” Pickering, 391 U.S. at 568, 88 S. Ct. at 1734–35.

We accept that Ms. Walden’s sincerely held religious beliefs prohibit her

from encouraging or supporting same-sex relationships through counseling. There

is no need to engage in the Pickering balancing test here, however, because Ms.

Walden cannot point to any evidence that Dr. Chosewood or Ms. Zerbe “burdened

one of [her] ‘sincerely held religious beliefs.’” Watts v. Fla. Int’l Univ., 495 F.3d

1289, 1294 (11th Cir. 2007) (quoting Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S.

829, 834, 109 S. Ct. 1514, 1517 (1989)). The record is devoid of evidence

supporting Ms. Walden’s claim that either defendant called for her removal from

the EAP contract due to her religiously-based need to refer clients who needed

same-sex relationship counseling.

17

Instead, the record is clear that Dr. Chosewood and Ms. Zerbe removed Ms.

Walden because of the manner in which she handled Ms. Doe’s referral, and

because they were concerned that she would behave the same way if a similar

situation were to arise in the future. And, significantly, Ms. Walden testified that

it was not part of her “religious beliefs” to tell clients, including Ms. Doe, that she

could not counsel them due to her religious beliefs or personal values. Instead,

she said she wanted “to be honest with my clients.” Rec., doc. 82 at 291–92. She

further explained that “it seemed unfair that [Ms. Doe] was able to talk about

being gay and lesbian, and yet I couldn’t freely talk about me and my religious

beliefs, or being Christian . . . . To me, it’s about honesty. If she can be honest – I

mean, I should be honest about why I’m transferring her.” Id. at 311–12.

Dr. Chosewood testified that he disapproved of how Ms. Walden handled

Ms. Doe’s referral. He explained that merely referring Ms. Doe due to Ms.

Walden’s religious conflict “would not have been problematic at all, but sharing

her objections to this patient’s circumstances, her life, I felt was inappropriate.”

Id., doc. 108 at 27. When asked whether it would have been appropriate for Ms.

Walden to state, “Based on my personal beliefs, I don’t feel I’m the best counselor

for you,” Dr. Chosewood replied:

There again, I feel like that statement has some – has some bias

18

in it, it has some judgmental tone in it. There are many people who

believe that homosexuality is like eye color or color of skin, you

know. There’s good science that supports that, as well. I would not

be happy with her saying something like, you know, “My personal

belief doesn’t allow me to see someone of your color.” To me, that’s

– it’s just not appropriate in that very vulnerable setting when patients

are coming to you maybe at their neediest time.

So I feel like a referral, perfectly fine. And – but to share, to

give any, really, sort of expression of judgment or of displeasure with

someone else’s situation or choices or life, to me, is not – it does not

further the therapeutic relationship in any way.

Id. at 37–38. Dr. Chosewood also emphasized that:

as the director of the [CDC’s] Office of Health and Safety, I felt a

responsibility to provide a high-quality, welcoming environment for

any of CDC’s workers who might come forward. I think that’s

especially true in the first intake session when the provider is unsure

of where an employee might be in a situation, how vulnerable they

might be, how much difficulty or struggle they might be having with

a situation, what their frame of mind, their mental state is. That’s a

particularly sensitive and vulnerable period in the client/provider

relationship, and I would hope that our program would be at its best

during that window. And certainly, I felt that was falling short of that

expectation of a high-quality program.

Id. at 25–26.

Ms. Zerbe agreed with Dr. Chosewood’s assessment. She concluded that

Ms. Walden’s handling of the referral was “an unacceptable reaction to the

situation” and explained:

[A]n individual coming in for counseling is already at a

hypersensitized state. [Ms. Doe] was made to feel worse coming in to

– for counseling. And that was done by letting the individual – by

19

Marcia Walden judging the individual as opposed to simply referring

her to another counselor.

Id., doc. 109 at 89.

Dr. Chosewood and Ms. Zerbe were both concerned that Ms. Walden would

react in a similarly inappropriate manner when confronted with future clients

seeking same-sex relationship counseling. Dr. Chosewood testified that he had

“continuing concerns over [Ms. Walden’s] behavior . . . and certainly feared that it

very likely could happen again.” Id., doc. 108 at 33. He also “began to worry

about the overall fit of [Ms. Walden] within [CDC’s] program, about the quality of

service that she would be providing . . . .” Id. Ms. Zerbe explained that CDC “did

not want any individual coming in for counseling to second-guess coming in for

counseling.” Id., doc. 109 at 89–90.

Ms. Walden does not dispute that Dr. Chosewood and Ms. Zerbe testified

about these concerns but contends that other statements show they removed her

due to her religiously-based need to refer clients seeking same-sex relationship

counseling. We do not agree.

First, Ms. Walden contends Ms. Zerbe testified that “Walden was unable to

fulfill the requirements of the EAP contract because of her need to refer Ms. Doe

when she sought counseling.” Aplt. Br. at 46. Ms. Zerbe did, in fact, state that

20

Ms. Walden was not able to fulfill the contract requirements due to the fact that

“[s]he was unable to counsel a CDC worker that came in for counseling.” Rec.,

doc. 109 at 56. In the course of the same discussion, however, she also made clear

her view that it is appropriate for a counselor to refer a client to another counselor

if she “could not, based on personal religious beliefs, counsel the individual.” Id.

at 58. She went on to explain that CDC asked Ms. Walden to be removed because

of the manner in which she handled Ms. Doe’s referral, and because they feared

she would handle future referrals in a similar way.

Second, Ms. Walden points to testimony by Ms. Zerbe and Dr. Chosewood

which, she argues, displays their concern that Ms. Walden’s religious and personal

beliefs might prevent her from counseling CDC employees about other issues. But

Ms. Walden has taken these statements out of context. Ms. Zerbe explained:

We did not know if this would be the only time she would not be able

to counsel an individual based on her religious and personal beliefs.

We have a very broad demographic in employee schematic, people

that are Islamic, people that were Muslim, people – we did not know

where that was going to lie. And if she was going to [imply] why she

did it to each person that came in, we thought that would damage the

EAP program.

Id. at 90. As this statement makes clear, Ms. Zerbe was not concerned about the

referrals themselves, but rather that Ms. Walden would convey in an unacceptable

manner her reason for future referrals. Similarly, Dr. Chosewood had “continuing

21

concerns over [Walden’s] behavior,” and he “feared that it very likely could

happen again.” Id., doc. 108 at 33. It is apparent from his testimony that his

concern was that Ms. Walden would continue to make personal, judgmental

comments to clients in connection with future referrals.

Ms. Walden relies on Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878

(1994), to argue that Dr. Chosewood and Ms. Zerbe acted unreasonably by asking

that she be removed from the EAP contract without first conducting their own

investigation into the incident with Ms. Doe. In her view, the information upon

which they relied was erroneous and they would have learned that she was willing

to alter her approach to referrals in the future had they conducted a reasonable

investigation.

The Court held in Waters that when a court must engage in Pickering’s

balancing test and weigh the government’s interests against the First Amendment

interests of the employee, it should “look to the facts as the employer reasonably

found them to be.” Id. at 677, 114 S. Ct. at 1889 (plurality opinion).4 That is,

when there are conflicting accounts of the employee’s speech or conduct, the court

4

Although the plurality opinion in Waters garnered only four votes, “[a] majority of the

Court agree[d] that employers whose conduct survives the plurality’s reasonableness test cannot

be held constitutionality liable (assuming the absence of pretext) . . . .” Waters, 511 U.S. at 685,

114 S. Ct. at 1893 (Souter, J., concurring).

22

should consider the employee’s behavior as the government believed it to be, so

long as that belief was reasonable. See id.; see also Salge v. Edna Indep. Sch.

Dist., 411 F.3d 178, 185 (5th Cir. 2005). The reasonableness of the government’s

understanding of events will often turn on the procedures it used to investigate the

employee’s speech or conduct. See Waters, 511 U.S. at 678, 114 S. Ct. at 1889

(plurality opinion).

But Ms. Walden’s reliance on Waters is misplaced. In Waters, “unlike the

instant case, the difference between the two versions of the employee’s speech was

determinative, as one version implicated protected speech and the other did not.”

Salge, 411 F.3d at 185. Here, in contrast, even under Ms. Walden’s version of

events, the behavior for which she was discharged – the manner in which she

referred Ms. Doe – was not protected conduct under the Free Exercise Clause.

This is so because Ms. Walden’s religious beliefs did not require her to tell Ms.

Doe the reason for the referral. Because Ms. Walden’s free exercise rights were

not implicated by her removal from the EAP contract, we do not reach Pickering’s

balancing test and Waters is inapposite.

Even if Waters were applicable, however, we would agree with the district

court that Dr. Chosewood and Ms. Zerbe acted reasonably in relying on CSC, and

Mr. Shelton in particular, to obtain information about Ms. Walden’s referral of

23

Ms. Doe and about how she would handle future referrals. We have previously

explained that a government employer may rely on investigations by trusted third

parties or subordinates in making employment decisions. See Shahar, 114 F.3d at

1106 n.18 (concluding Attorney General did not act unreasonably in relying on

information provided by his staff or in acting without having personally spoken

with plaintiff). Similarly, it was reasonable for Dr. Chosewood and Ms. Zerbe to

rely on information provided by Ms. Walden’s actual employer about its

investigation to conclude that Ms. Walden should be removed from the EAP

contract. Dr. Chosewood received two updates from CSC about Ms. Walden.

First, Mr. Shelton advised Dr. Chosewood that he “should be aware of a situation

where Ms. Walden had told one of our CDC workers that she would not be able to

counsel her because of her religious objections to the patient’s issues around her

same-sex relationship. And that the employee was quite upset about that fact.”

Rec., doc. 108 at 24. Mr. Shelton also told Dr. Chosewood that CSC was going to

investigate the situation, and that he would follow up with more information.

Second, during the course of Ms. Byrum’s investigation, Mr. Shelton informed Dr.

Chosewood that CSC had spoken with Ms. Walden and discussed methods for

referring employees without reference to her religious objections or personal

values, but Ms. Walden was unwilling to modify her approach to handling

24

referrals in the future.

Ms. Walden contends she did not, in fact, insist upon voicing her objections

to same-sex relationships in connection with future referrals. Instead, she merely

refused to state that she did not have experience in relationship counseling when

referring clients. But she also did not volunteer an alternative approach to future

referrals. Although CDC could have engaged in an independent investigation, its

decision not to do so was nonetheless reasonable under the Waters standard.

Because Dr. Chosewood and Ms. Zerbe did not violate Ms. Walden’s free exercise

rights, they are entitled to qualified immunity.

2. Free Exercise Retaliation

Ms. Walden also maintains that by requesting CSC to remove her from the

EAP contract, Dr. Chosewood and Ms. Zerbe retaliated against her for engaging in

constitutionally protected activity, that is, her decision to refer Ms. Doe because of

her religious beliefs. The district court held that Ms. Walden had not made out a

prima facie case of free exercise retaliation. Ms. Walden contends the district

court erred in dismissing her claim.

In order to establish a prima facie case of First Amendment retaliation, Ms.

Walden must show that she engaged in constitutionally protected activity and that

the protected conduct played a “substantial or motivating role” in the alleged

25

adverse employment action. Akins v. Fulton Cnty., 420 F.3d 1293, 1303 (11th Cir.

2005) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989)).

If Ms. Walden made this showing, the burden would then shift to Dr. Chosewood

and Ms. Zerbe to prove that they would have taken the same action absent the

protected conduct. Id.

Ms. Walden did not establish a prima facie case of retaliation because she

failed to provide evidence that her religiously-based need to refer Ms. Doe was a

“substantial or motivating” factor in Dr. Chosewood and Ms. Zerbe’s decision to

have her removed from the EAP contract. As discussed above, undisputed facts in

the record show that Dr. Chosewood and Ms. Zerbe asked for Ms. Walden’s

removal from the contract because of how she handled Ms. Doe’s referral and

because they believed Ms. Walden would not alter her behavior in similar

circumstances in the future, not because of her religious views or her need to refer

clients for religious reasons.

Ms. Walden argues that she raised a genuine fact issue as to causation by

showing a close temporal proximity of three weeks between her protected activity

and Dr. Chosewood and Ms. Zerbe’s adverse employment action. See, e.g.,

Stanley v. City of Dalton, 219 F.3d 1280, 1291 & n.20 (11th Cir. 2000) (listing

temporal proximity as among the factors relevant for showing causation). But this

26

showing of temporal proximity is not sufficient to negate the evidence showing

that Ms. Walden was removed for her approach to making referrals and not for her

need to make referrals for religious reasons. Cf. Wascura v. City of S. Miami, 257

F.3d 1238, 1247 (11th Cir. 2001) (holding, in context of ADA claim, that where

ample legitimate reasons supported a termination decision, temporal proximity

alone was insufficient to meet plaintiff’s burden of showing employer’s articulated

reasons for termination was pretextual).

Ms. Walden has not provided evidence that Dr. Chosewood and Ms. Zerbe

requested her removal from the EAP in retaliation of her free exercise rights.

Because she failed to show that her constitutional right was violated, Dr.

Chosewood and Ms. Zerbe are entitled to qualified immunity.

3. RFRA

Under RFRA, “Government shall not substantially burden a person’s

exercise of religion even if the burden results from a rule of general

applicability . . . .” 42 U.S.C. § 2000bb-1(a).5 However, the government “may

substantially burden a person’s exercise of religion” if the challenged action “is in

furtherance of a compelling governmental interest” and “is the least restrictive

5

RFRA has been held unconstitutional as applied to states. See City of Boerne v. Flores,

521 U.S. 507, 117 S. Ct. 2157 (1997).

27

means of furthering that compelling governmental interest.” Id. § 2000bb-1(b).

The statute defines “government” to include agencies and officials of the United

States. Id. § 2000bb-2(1).6

Ms. Walden’s RFRA claim against Dr. Chosewood and Ms. Zerbe fails for

the same reason that her free exercise claim fails: Their decision to ask for Ms.

Walden’s removal from the EAP contract did not “substantially burden” her need

to refer clients seeking same-sex relationship counseling due to her religious

beliefs. See 42 U.S.C. § 2000bb-1(a). On this record, no reasonable juror could

conclude that their decision was based on Ms. Walden’s religious objections to

counseling clients in same-sex relationships, rather than the manner in which Ms.

Walden handled Ms. Doe’s referral and their understanding that Ms. Walden

would not alter her behavior in connection with future referrals. Because Dr.

6

Congress passed RFRA in response to Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990), which Congress found

“virtually eliminated the requirement that the government justify burdens on religious exercise

imposed by laws neutral toward religion.” 42 U.S.C. § 2000bb(a)(4). RFRA’s stated purpose

was “to restore the compelling interest test” provided in Sherbert v. Verner, 374 U.S. 398, 83 S.

Ct. 1790 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972), “where free

exercise of religion is substantially burdened” by government. 42 U.S.C. § 2000bb(b)(1).

In proceedings below, the magistrate judge determined that in light of Congress’s intent

to use RFRA to restore the law to its pre-Smith state, RFRA’s heightened compelling interest

standard was inapplicable to a government employer. It reasoned that even before Smith,

Pickering’s balancing test, rather than Sherbert’s compelling interest standard, applied when the

government burdened the First Amendment rights of one of its employees.

The district court declined to resolve whether RFRA applies to the government when it

acts as an employer rather than as sovereign, as do we. Notably, the government does not argue

that RFRA is inapplicable. We therefore assume RFRA applies here.

28

Chosewood and Ms. Zerbe did not violate Ms. Walden’s statutory right under

RFRA, they are entitled to qualified immunity.

C. Claims Against CSC

Ms. Walden maintains that CSC’s action in removing her from her position

infringed on her religious rights in violation of the Free Exercise Clause of the

First Amendment, RFRA, and Title VII. We address each argument in turn.

1. Free Exercise

Ms. Walden seeks monetary damages against CSC for allegedly violating

her First Amendment free exercise rights by removing her from her position.

Neither Ms. Walden nor CSC cites the Supreme Court’s decision in Correctional

Services Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515 (2001), but under this

decision, Ms. Walden’s claim is foreclosed.

In Malesko, the Supreme Court refused to extend Bivens to allow an action

against a private corporation operating under a contract with the federal

government. The Court explained, “The purpose of Bivens is to deter individual

federal officers from committing constitutional violations. . . . [T]he threat of suit

against an individual’s employer was not the kind of deterrence contemplated by

Bivens.” Id. at 70, 122 S. Ct. at 521 (citing FDIC v. Meyer, 510 U.S. 471, 485,

29

114 S. Ct. 996, 1005 (1994)) (emphasis added). Thus, “if a corporate defendant is

available for suit, claimants will focus their collection efforts on it, and not the

individual directly responsible for the alleged injury.” Id. at 71, 122 S. Ct. at 521;

see also Meyer, 510 U.S. at 485, 114 S. Ct. at 1005 (“If we were to imply a

damages action directly against federal agencies, . . . there would be no reason for

aggrieved parties to bring damages actions against individual officers. . . . [T]he

deterrent effects of the Bivens remedy would be lost.”).

Ms. Walden has alleged a constitutional tort claim against CSC, a private

corporate entity acting under contract with the federal government. And we see no

meaningful distinction between Malesko and Ms. Walden’s suit that would

warrant departing from the Supreme Court’s clear holding that foreclosed

“inferring a constitutional tort remedy against a private entity.” Malesko, 534 U.S.

at 71, 122 S. Ct. at 521. Under Malesko, Ms. Walden cannot bring a Bivens action

against CSC.7

2. RFRA

We next turn to Ms. Walden’s claim that CSC impermissibly burdened her

free exercise rights under RFRA, 42 U.S.C. § 2000bb et seq., when it removed her

7

Ms. Walden also seeks a declaratory judgment against CSC. She lacks standing to do so

for the reasons given in Part II.A. of our opinion.

30

from the EAP contract, laid her off, and then terminated her. Like the district

court, we assume that CSC acted as an “instrumentality” of the federal government

when it removed Ms. Walden from her position, and therefore may be subject to

suit under RFRA. See id. § 2000bb-1(a) (imposing the obligations of RFRA upon

the “Government”); id. § 2000bb-2(1) (defining “government” to include “a

branch, department, agency, instrumentality, and official (or other person acting

under color of law) of the United States, or of a covered entity”). We also agree

with the district court that CSC did not “substantially burden” Ms. Walden’s

religious rights when it removed her from the EAP contract or when it

subsequently laid her off.

The district court held that CSC’s actions did not burden Ms. Walden’s

religious beliefs because it was CDC’s request that she be removed from the EAP

contract which necessitated her layoff. Ms. Walden contends she introduced

sufficient evidence from which a reasonable jury could conclude that CSC

removed her due to her religiously-based need to refer clients seeking same-sex

relationship counseling, not just because they were required to. She asserts that

several statements made by CSC employees prior to CDC’s August 30 request to

have her removed support her claim. For example, Mr. Hughes told Ms. Walden

on August 22 that EAP counselors “needed to see everyone, . . . . were required to

31

see everyone, [and] could not refer people.” Rec., doc. 102 at 68. Ms. Walden

cites several other statements by CSC employees indicating they had concerns

about Ms. Walden’s ability to satisfy her job requirements.

Ms. Walden also points to actions that CSC employees took with respect to

her employment. On August 22, for example, Mr. Shelton initiated a reduction in

force (“RIF”) action against Ms. Walden with CSC’s human resources department,

although the RIF was never implemented. Moreover, on August 24, CSC

suspended Ms. Walden without pay.

Notwithstanding the statements and conduct by CSC’s employees, CSC did

not actually take Ms. Walden off the EAP contract until CDC asked for her

removal on August 30. And, as we have held, Dr. Chosewood and Ms. Zerbe’s

request to remove Ms. Walden from the contract was not motivated by, and did not

burden, her religious need to refer clients seeking same-sex relationship

counseling. Once CDC made this request, CSC was contractually obligated to

comply. Because CSC had no choice but to remove Ms. Walden from her

counseling position, any other motivations CSC employees may have expressed

are irrelevant to the removal decision. Consequently, no reasonable jury could

find that CSC’s action substantially burdened Ms. Walden’s religious rights.

Nor could a reasonable jury find that CSC’s subsequent decision to lay off

32

Ms. Walden substantially burdened her religious rights. The EAP positions at

CDC were CSC’s only counseling positions in the Atlanta area. Thus, once Ms.

Walden was removed from the EAP contract, CSC had no counseling job to offer

her. Rather than terminating her, CSC placed her in layoff status. Because CSC

characterized Ms. Walden’s layoff as resulting from a “client bar action,” she was

entitled to seek other employment opportunities within the company and would

have retained her tenure as long as she found another position within one year.

CSC provided Ms. Walden with access to internal career and employee

reassignment services and encouraged her to seek other employment within the

company. As a result of Ms. Walden’s own decision not to seek other

employment opportunities, her layoff became permanent.

Because CSC did not burden Ms. Walden’s religious rights by removing her

from the EAP contract or by ultimately terminating her employment, the district

court properly granted summary judgment in favor of CSC on her RFRA claim.

3. Title VII

Ms. Walden also maintains that CSC discriminated against her in violation

of Title VII when it removed her from her position. The district court held that

Ms. Walden failed to establish a prima facie case of religious discrimination

because she did not show that she was discharged for failing to comply with an

33

employment requirement that conflicted with her religious beliefs. The court also

determined that even assuming Ms. Walden could establish a prima facie case, her

Title VII claim still failed because CSC had provided her with a reasonable

accommodation as a matter of law, and because Ms. Walden failed to make a good

faith attempt to accommodate her religious needs through the means offered by

CSC.

Title VII makes it unlawful for an employer to discharge an employee on the

basis of the employee’s religion. 42 U.S.C. § 2000e-2(a)(1). “Religion” is

defined to include “all aspects of religious observance and practice, as well as

belief.” Id. § 2000e(j). An employer has a “statutory obligation to make

reasonable accommodation for the religious observances of its employees, short of

incurring an undue hardship.” 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, 411 U.S. 792, 93 S.

Ct. 1817 (1973). Under this framework, the plaintiff must first establish a prima

facie claim by presenting “evidence sufficient to prove that (1) [she] had a bona

fide religious belief that conflicted with an employment requirement; (2) [she]

informed [her] employer of [her] belief; and (3) [she] was discharged for failing to

34

comply with the conflicting employment requirement.” Morrissette-Brown v.

Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1321 (11th Cir. 2007). We are

mindful that the plaintiff’s burden of establishing a prima facie case in Title VII

cases “is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,

101 S. Ct. 1089, 1094 (1981). “Establishment of the prima facie case in effect

creates a presumption that the employer unlawfully discriminated against the

employee.” Id. at 254, 101 S. Ct. at 1094. If the plaintiff establishes a prima facie

case, “the burden shifts to the defendant to ‘demonstrate[ ] 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.’” Morrissette-Brown, 506 F.3d at 1321 (quoting 42 U.S.C. § 2000e(j))

(alteration in original).

The parties agree that Ms. Walden satisfies the first two elements of her

prima facie case. She held a bona fide religious belief that she could not provide

relationship counseling to individuals in same-sex relationships, but EAP

counselors were required to counsel all CDC employees on all issues. She also

had informed her supervisor, Mr. Hughes, of this conflict. Even if we assume Ms.

Walden has presented sufficient evidence to raise a genuine dispute of fact as to

the third element of her prima facie case, however, her claim still must fail. CSC

35

provided Ms. Walden with a reasonable accommodation as a matter of law.

“[T]he precise reach of the employer’s obligation to [reasonably

accommodate] its employee is unclear under the statute and must be determined on

a case-by-case basis.” Beadle v. Hillsborough Cnty. Sheriff’s Dep’t, 29 F.3d 589,

592 (11th Cir. 1994). But “a reasonable accommodation is one that ‘eliminates the

conflict between employment requirements and religious practices.’”

Morrissette-Brown, 506 F.3d at 1322 (quoting Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60, 70, 107 S. Ct. 367, 373 (1986)). “[C]ompliance with Title VII does

not require an employer to give an employee a choice among several

accommodations; nor is the employer required to demonstrate that alternative

accommodations proposed by the employee constitute undue hardship.” Beadle,

29 F.3d at 592 (citing Philbrook, 479 U.S. at 68, 107 S. Ct. at 371). Instead, the

employer must only show that the employee was offered a reasonable

accommodation, “regardless of whether that accommodation is one which the

employee suggested.” Id. “[A]ny reasonable accommodation by the employer is

sufficient to meet its accommodation obligation.” Philbrook, 479 U.S. at 68, 107

S. Ct. at 372.

After CDC requested that Ms. Walden be removed from the EAP contract,

CSC laid her off because it had no counseling positions available in the Atlanta

36

area. But CSC reasonably accommodated Ms. Walden when it encouraged her to

obtain new employment with the company and offered her assistance in obtaining

a new position. Because of Ms. Walden’s laid off status, she would have retained

her tenure had CSC rehired her within a year in another position. Although other

positions were available, Ms. Walden did not apply for any of them. Ms.

Walden’s claim that CSC should have instead considered “the most obvious

accommodation—transfer to a non-counseling position,” Aplt. Br. at 40, is of no

relevance here. CSC was only obligated to offer her some reasonable

accommodation. It was not required to provide Ms. Walden with her preferred

accommodation. See Philbrook, 479 U.S. at 68, 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.”).

Our sister circuit reached a similar conclusion on facts strikingly similar to

those here in Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495, 501

(5th Cir. 2001). In Bruff, the court held that the defendant hospital fulfilled its

obligation to accommodate the plaintiff counselor’s religiously-based refusal to

provide same-sex relationship counseling when it gave her thirty days to find

another position at the hospital and provided her with the assistance of its in-house

37

employment counselor. Id. at 502–03. There, as here, the employer encouraged

its employee to seek another position with the company and provided assistance in

that search. By giving Ms. Walden the opportunity to remain employed with the

company, “instead of simply terminating her as an at-will employee refusing to

fulfill her job responsibilities,” id. at 502, CSC provided a reasonable

accommodation to Ms. Walden.

Moreover, “[w]hile we recognize an employer’s duty to reasonably

accommodate the religious practices of its employee, we likewise recognize an

employee’s duty to make a good faith attempt to accommodate [her] religious

needs through means offered by the employer.” Beadle, 29 F.3d at 593 (citations

omitted). CSC’s proffer of a reasonable accommodation triggered Ms. Walden’s

accompanying duty to make a good faith attempt to accommodate her needs

through the offered accommodation. She failed to comply with this duty when she

elected not to apply for any positions within the one-year period.

Ms. Walden contends her layoff with rights was not offered as a reasonable

accommodation of her religious beliefs because CSC’s policies provide that all

laid-off employees have access to the company’s employment services and the

opportunity to be rehired. She relies on Proctor v. Consolidated Freightways

Corp., 795 F.2d 1472, 1476–77 (9th Cir. 1986), where the court reversed a district

38

court’s grant of summary judgment after determining the plaintiff had presented

sufficient evidence to call into question the employer’s motive with respect to

accommodating her religious beliefs. Id. We are not persuaded by this argument,

however, given that CSC specifically elected to lay Ms. Walden off rather than

terminate her.

Accordingly, the district court properly granted summary judgment on Ms.

Walden’s Title VII claim against CSC.

III.

For the foregoing reasons, we AFFIRM.

39