Opposition Brief — Chalmers v. Tulon Co. of Richmond

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

24, ££ D

GUN 27 1997

No. 96-1874 :

In THE

Suygrane Goust of te Setteh tates

OCTOBER TERM, 1996

@>)

CHARITA D. CHALMERS,

Petitioner,

TULON COMPANY OF RICHMOND,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Davip E. NAGLE

Counsel of Record

ELLEN DuFFY MCKAY

LECLAIR RYAN

707 East Main Street

Richmond, Virginia 23219

(804) 783-2003

Attorneys for Respondent

Wiison - Eres Peintine Co... Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Should the prima facie test of a claim for religious

discrimination be modified by eliminatimg the require-

ment that an employee inform her employer of reli-

gious needs requiring accommodation?

Should an employee be permitted to use her religion

as a shield against the consequences of her actions

where the employer had no opportumity to evaluate

the possibility of accommodation?

(i)

PARTIES TO THE PROCEEDING BELOW

Petitioner: Charita D. Chalmers (Plaintiff-Appellant)

Respondent: Tulon Co. (Defendant-Appellee)

CORPORATE DISCLOSURE STATEMENT

Respondent, Tulon Co., is a wholly-owned subsidiary of

Esterline Technologies Corp., a publicly held company

traded on the New York Stock Exchange. No other pub-

licly held entity has a direct financial interest in the out-

come of this litigation.

TABLE OF CONTENTS

Page

QUESTIONS. PRESENTED FOR REVIEW i

PARTIES TO THE PROCEEDING BELOW _.___. ii

CORPORATE DISCLOSURE STATEMENT... ii

TABLE OF AUTHORITIES... v

ee 1

STATEMENT OF JURISDICTION 2

STATEMENT OF THE CASE 0... 2

SUMMARY OF REASONS FOR DENYING THE

WRIT RNS ASE San 8 eee 6

REASONS FOR DENYING THE WRIT... 8

I. THIS COURT DOES NOT HAVE JURISDIC-

TION TO CONSIDER THE PETITION FOR

WRIT OF CERTIORARI... 8

Il. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE CIR-

CUITS AGREE THAT TO ESTABLISH

A VALID RELIGIOUS ACCOMMODATION ~

CLAIM, A PLAINTIFF MUST FIRST NOTIFY

HER EMPLOYER OF HER RELIGIOUS

BELIEFS. a 9

A. The Circuits Concur With the Fourth Cir-

cuit’s Ruling That Religious Accommodation

Claims Are cancuall Under a Two-Part

Framework 9

(iii)

. | nisl

TABLE OF CONTENTS—Continued

B. The Fourth Circuit’s Ruling That Petitioner

Failed to State a Prima Facie Case of Reli-

gious Accommodation Discrimination Because

She Did Not Notify Her Employer That Her

Religion Required Her to Write Personal Dis-

turbing Letters to Her Co-Workers Is Con-

sistent With the Rulings of Other Circuits....

The Conflict in the Circuits Alleged by

Petition Is Illusory, as the Fourth Circuit’s

Decision Does Not Conflict With the Deci-

sions of Other Circuits Diiciesedihidlicticliaies:

The Instant Case Is Analogous to, and

Consistent With, Cases in Which an Em-

ployee Engages in Misconduct, and Only

After Being Disciplined, Notifies the Em-

ployer of Her Religious Need to Engage

WB RRSP IOC Lae Po OLIN

III. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE IN TRANS

WORLD AIRLINES v. HARDISON THIS

COURT REJECTED THE NOTION THAT

RELIGIOUS OBSERVERS ARE ENTITLED

TO EXEMPTION FROM WORKPLACE

RULES ... i cabaesila Dialed t-sdhalhedice +

CONCLUSIO

APPENDIX:

Spencer

N Se eee eee

v. North Am. Salt Co., 1997 U.S. App.

LEXIS 601 (10th Cir. January 15, 1997) ...........

Page

TABLE OF AUTHORITIES

CASES Page

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60

SE oo et ncaaa 9, 10

Beasley v. Health Care Serv. Corp., 940 F.2d 1085

Cla Se ED nae ee te 7,10, 11

Brown v. Polk County, 61 F.3d 650 (8th Cir. 1995),

cert. denied, —— U.S. —~—, 116 S. Ct. 1042

| ROR ie IS SRA ine EE Akin «be SR eee 18, 15, 16

Cary v. Carmichael, 908 F. Supp. 1834 (E.D. Va.

1995) oat Bre tents Platt A See ao Nae See aay 18

Chalmers v. Tulon Company of Richmond, 101 F. 8d

EE ORIG A acne Ss passim

Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir.

1977), cert. denied, 484 U.S. 10389 dulce ebiaas 12, 22

Collings v. Longview Fibre Co., 68 F.3d 828 (9th

Cir. 1995), cert. denied, 116 §. Ct. 711 (1996) _. 23

Crawford v. Runyon, 3 Am. Disabilities Cas.

(BNA) 1826 (8th Cir. 1994) _............. 23

Despears v. Milwaukee County, 68 F.8d 635 (7th

SE I eee ee eet 22

EEOC v. Arlington Transit Miz, Inc., 957 F.2d 219

BATES Racer eee eae 7,10, 11

EEOC v. J.P. Stevens and Co., 740 F. Supp. 1185

Oe ER re PMs Eee eS BaD 19, 20

Getz v. Pennsylvania Dep’t of Public Welfare, 802

ae eee ee 7,10, 11

Heller v. EBB Auto Co., 8 F.3d 1488 (9th Cir.

UE cei a ee 7, 10-14

Johnson v. Angelica Uniform Group, Inc., 762 F. 2d

=.) & | Se eee 7, 10-12, 17

Landefeld v. Marion General Hospital, 2 Am. Dis-

abilities Cas. (BNA) 900 (6th Cir. 1995)... 23

Maddoz v. University of Tenn., 62 F.3d 848 (6th

SRN RE SET COC Tae Pee Oe 23

Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476

(2d Cir. 1985), aff'd and remanded, 479 U.S. 60

SES Se en ae a 12

Redmond v. GAF Corp., “BTA F.2d ‘897 (7th Cir.

RES er eee NE eee ae 12

TABLE OF AUTHORITIES—Continued

Page

Siefken v. Village of Arlington Heights, 65 F.3d

CR, Fee Se RE siddatinhtdata Sil ei 23

Smith. v..Pyra Mining Co., 827 F.2d 1081 (6th Cir.

1987), cert. denied, 485 U.S. 989 (1988) -.......... 12

Spencer v. North Am. Salt Co., 1997 U.S. App.

LEXIS 601 (10th Cir. January 15, 1997) ........... 7,17, 18

Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th

Cir. 1989), cert. denied, 495 U.S. 948 (1990) ....7, 10, 11

Trans World Airlines v. Hardison, 482 U.S. 63

hs FREER AEE ES ne Ra TIS its ARE SR ED 8, 20-23

Turpen v. Missouri K. T. R. Co., 736 F.2d 1022 .

I hee icheetacoristnastincetiinase 7, 10-12

Wilson v. U.S. West Communications, 58 F.3d 1337.

Be Ree TIE iad soe-sscnipireninnacinsioctadictitiatniste ini aianap 13-15

STATUTES

aie ey Oe I nner icons passim

REGULATIONS

OD nc enememiacstnariine 16

RULES

aE 2, 6,8

i cemnineapnnan 2, 6, 8, 9

|, ae 8

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-1874

Carita D. CHALMERS,

¥ Petitioner,

TULON COMPANY OF RICHMOND,

Respondent.

On Petition for Writ of Certiorari to the

United States Court.of Appeals

for the Fourth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Tulon Co.’, respectfully requests this Court

deny the Petition for a Writ of Certiorari to review a judg-

ment of the United States Court of Appeals for the Fourth

Circuit entered on January 16, 1997.

OPINIONS BELOW

The decision of the United States District Court for the

Eastern District of Virginia was stated from the bench,

and a final order was entered on July 26, 1995 granting

summary judgment to Tulon Co. on all counts. The deci-

sion of the United States Court of Appeals for the Fourth

Circuit affirming the district court’s decision was published

in Chalmers v. Tulon Company of Richmond, 101 F.3d

1012 (4th Cir. 1996). Plaintiff-appellant’s petition for

Incorrectly identified throughout these proceedings as Tulon

Company of Richmond.

rehearing en banc was denied by order filed January 16,

1997.

STATEMENT OF JURISDICTION

This Court cannot properly exercise jurisdiction over

this case because the petition was not filed within 90 days

after judgment as required by Supreme Court Rule 13.

Petitioner seeks review from a decision of the United

States Court of Appeals for the Fourth Circuit entered on

December 4, 1996. Petition for rehearing and suggestion

for rehearing en banc was denied by order filed January

16, 1997. Accordingly, pursuant to Supreme Court Rules

9(1) and 13(1), the petition should have been filed by

an attorney admitted to practice before this Court on or

before April 16, 1997. The petition was not filed by such

an attorney in a timely manner, and was not docketed by

this Court until May 28, 1997. No extension of time for

filing the petition, pursuant to Supreme Court Rule 13(5),

was sought or obtained. The petition was therefore un-

timely, and may not properly be considered. See pp. 8-9

below.

STATEMENT OF THE CASE

Petitioner, Charita Chalmers, was employed by Re-

spondent, Tulon Co. (“Tulon”), in the company’s Rich-

mond, Virginia service center (“Richmond Center”) from

October 1988 until September 21, 1993. Chalmers v.

Tulon Company of Richmond, 101 F.3d 1012, 1014 (4th

Cir. 1996). During Ms. Chalmers’ employment, the Rich-

mond Center employed from six to fifteen employees. /d.

Tulon manufactures and repoints drill bits and routers

used in the printed circuit board industry. Ms. Chalmers

began working for Tulon as a repoint operator, and was

promoted to repoint supervisor in 1991. As repoint super-

visor, Ms. Chalmers was the only management-level em-

ployee who regularly worked at the Richmond Center.

Richard C. LaMantia, Ms. Chalmers’ immediate super-

visor, was in charge of sales throughout the eastern United

States and was present at the Richmond Center only a few

—— eS ll ee

Og ERTEES

‘a

’

I have to answer to God just like you do, so that’s

why I wrote you this letter. Please take heed before

it’s too late.

In his name,

Charita Chalmers

Id. at 1015.

Ms. Chalmers’ letter arrived at Mr. LaMantia’s home

on September 10, 1993, while he was traveling on Tulon

business. Ms. LaMantia’s wife opened the letter in his

Hee ene re re er eet ee

absence. Mrs. LaMantia interpreted the references to her

husband’s improper conduct as indicating that he was

committing adultery. In tears, Mrs. LaMantia telephoned

her husband, while he was conducting a Tulon business

presentation, and accused him of infidelity. Mr. LaMantia

complained to Craig A. Faber, Vice President of Admin-

istration at Tulon, about Ms. Chalmers’ letter. Mr. La-

Mantia told Mr. Faber that the letter had caused him

personal anguish, had placed a serious strain on his mar-

riage, and that he no longer could work with Ms. Chal-

mers. Id.

While investigating Mr. LaMantia’s complaint, Mr.

Faber discovered that Ms. Chalmers had sent a second

letter to Brenda Combs, a Tulon employee who was a

direct subordinate of Ms. Chalmers. At the time Ms.

Chalmers sent this letter, Ms. Combs was convalescing

from an undiagnosed medical condition after giving birth

out of wedlock:

Brenda,

You probably do not want to hear this at this time,

but you need the Lord Jesus in your life right now.

One thing about God, He doesn’t ike when people

commit adultery. You know what you did is wrong,

sO now you need to go to God and ask for for-

giveness.

Let me explain something about God. He’s a God

of Love and a God of Wrath. When people sin

against Him, He will allow things to happen to them

or their family until they open their eyes and except

[sic] Him. God can put a sickness on you that no

doctor ever could find out what it is. I’m not saying

this is what happened to you, all I’m saying is get

right with God right now. Romans 10:9; 10vs says

that is [sic] you confess with your mouth the Lord

Jesus and believe in your heart that God has raised

him from the dead thou shalt be saved. For with the

heart man believeth unto righteousness; and with the

mouth confession is made unto salvation. All I’m

saying is you need to invite God into your heart and

live a life for him and things in your life will get

better.

That’s not saying you are not going to have prob-

lems but it’s saying you have someone to go to.

Please take this letter in love and be obedient to

God.

In his name,

Charita Chalmers

Upon receiving the letter, Ms. Combs wept. Ms. Combs

later told Mr. Faber she found the letter cruel because it

implied that “an immoral lifestyle” had caused her illness.

Id.

Mr. Faber consulted with other members of upper man-

agement and concluded that the letters had a negative im-

pact on working relationships, disrupted the workplace,

and inappropriately invaded employee privacy. Accord-

ingly, Tulon upper management colectively decided to

terminate Ms. Chalmers’ employment. Id.

Mr. Faber arranged for Ms. Chalmers to receive a mem-

orandum setting forth the reasons for her discharge and

spoke with her from California by telephone simultane-

ously. The memorandum stated, in relevant part:

We have decided to terminate your employment with

Tulon Co. effective today, September 21, 1993. Our

decision is based on a serious error in judgment you

made in sending letters to Rich LaMantia and Brenda

Combs, which criticized their personal lives and be-

liefs. The letters offended them, invaded their pri-

vacy, and damaged your work relationships, making

it too difficult for you to continue to work here.

We expect all of our employees to show good judg-

ment, especially those in supervisory positions, such

as yours. We would hope you can learn from this

a experience and avoid similar mistakes in the future.

Id.

Following her discharge, Ms. Chalmers filed suit in the

U.S. District Court for the Eastern District of Virginia

alleging that Tulon discriminated against her on the basis

of her religion in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2, when the company

terminated her employment. The District Court granted

summary judgment in favor of Tulon on the grounds that

Ms. Chalmers failed to establish either a prima facie case

of disparate treatment religious discrimination or a prima

facie case of failure to accommodate religious discrimina-

tion. 7d. at 1018. The U.S. Court of Appeals for the

Fourth Circuit affirmed the District Court’s ruling on the

grounds that Ms. Chalmers (1) failed to establish a prima

facie case of failure to accommodate religious discrimina-

tion because she did not notify Tulon that her religious

needs required her to send personal, disturbing letters to

her coworkers and (2) even if she had established a prima

facie case, her claim would fail because her conduct was

not the type that an employer can possibly accommodate,

even with notice. Id. at 1021. Petition for rehearing en

banc was denied by order filed January 16, 1997. A peti-

tion for writ of certiorari to the United States Court of

Appeals for the Fourth Circuit followed.

SUMMARY OF REASONS FOR DENYING THE WRIT

This Court cannot properly exercise jurisdiction over

this case because the petition for writ of certiorari was not

properly filed within 90 days after judgment as required

by Supreme Court Rules 9 and 13. Petitioner seeks re-

view from a decision of the United States Court of Ap-

peals for the Fourth Circuit entered on December 4, 1996.

Petition for rehearing with suggestion for rehearing en

banc was denied by order filed January 16, 1997. Ac-

cordingly, pursuant to Rules 9 and 13, the petition should

have been filed by an attorney admitted to practice before

this Court no later than April 16, 1997. Petitioner’s coun-

sel of record was not admitted to practice before this

Court, and the petition was not docketed by this Court

until May 28, 1997. In the absence of a timely motion

and order granting additional time, the petition was un-

timely and may not properly be considered.

Certiorari should be denied in this case because the

Circuits agree with the Fourth Circuit’s holding that to

make out a religious accommodation claim, a plaintiff

must establish that she informed her employer of her

religious needs. See, e.g., Turpen v. Missouri K. T. R.

Co., 736 F.2d 1022, 1026 (5th Cir. 1984); Getz v. Penn-

sylvania Dep’t of Public Welfare, 802 F.2d 72, 73 (3d

Cir. 1986); EEOC v. Arlington Transit Mix, Inc., 957

F.2d 219, 221-22 (6th Cir. 1991); Beasley v. Health

Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir. 1991);

Johnson v. Angelica Uniform Group, Inc., 762 F.2d 671,

673 (8th Cir. 1985); Heller v. EBB Auto Co., 8 F.3d

1433, 1438 (9th Cir. 1993); Toledo v. Nokel-Sysco, Inc.,

892 F.2d 1481, 1486 (10th Cir. 1989), cert. denied, 495

U.S. 948 (1990). As the Fourth Circuit correctly ob-

served, and as Petitioner herself has admitted, Petitioner

did not notify Tulon at any time that her religion required

her to write proselytizing letters to her subordinates and

co-workers “criticizing them for assertedly ungodly, shame-

ful conduct.” Chalmers, 101 F.3d at 1020. Thus, Peti-

tioner failed to state a prima facie case of religious dis-

crimination and her case properly was dismissed.

Certiorari also should be denied because the alleged

conflict among the Circuits identified by Petitioner is

illusory. First, the Fourth Circuit’s ruling can be recon-

ciled with the three decisions with which Petitioner claims

it is at odds. Second, the decision below is analogous to,

and consistent with, those cases in which an employee

engages in misconduct, and only after being disciplined,

informs her employer of a religious need to engage in the

misconduct. Under these circumstances, courts consist-

ently have held that the employee failed to state a prima

facie case of religious discrimination. See, e.g., Johnson

v. Angelica Uniform, supra; Spencer v. North Am. Salt

Co., 1997 U.S. App. LEXIS 601, *7 (10th Cir. January

15, 1997).

Finally, certiorari should be denied because the inter-

pretation of Title VII urged by Petitioner would conflict

with this Court’s holding in Trans World Airlines v.

Hardison, 432 U.S. 63, 81 (1977). Permitting religious

observers to use their religion as a shield against the con-

sequences of workplace misconduct would result in un-

equal treatment of similarly situated employees and would

yield a chaotic workplace. This Court already has held

that Title VII does not contemplate such a result. /d.

REASONS FOR DENYING THE WRIT

I. THIS COURT DOES NOT HAVE JURISDICTION

TO CONSIDER THE PETITION FOR WRIT OF

CERTIORARI

This Court cannot properly exercise jurisdiction over

this case because the petition was not filed within 90 days

after judgment as required by Supreme Court Rule 13.

Rule 13 provides, in relevant part:

1. Unless otherwise provided by law, a petition for

a writ of certiorari to review a judgment in any

case ... is timely when it is filed within 90 days

after entry of the judgment. . .

2. The Clerk will not file any petition for writ of

certiorari that is jurisdictionally out of time. See,

e.g., 28 U.S.C. § 2101 (c).

Sup. Ct. R. 13. Supreme Court Rule 9(1) provides that,

“An attorney seeking to file a document in this Court in

a representative capacity must first be admitted to practice

before this Court.” Sup. Ct. R. 9(1).

Petitioner seeks review from a decision of the United

States Court of Appeals for the Fourth Circuit entered on

December 4, 1996. Chalmers, 101 F.3d at 1012. Petition

for rehearing with suggestion for rehearing en banc was

denied by order filed January 16, 1997. In the absence

of an extension of the time for filing as permitted by

Supreme Court Rule 14, the petition should have been

filed by April 16, 1997, as required by Rule 13. Because

Petitioner’s counsel of record was not admitted, the peti-

tion was not properly filed by April 16, and was not

docketed until May 28, 1997. It may not therefore prop-

erly be considered by this Court.

Il. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE CIRCUITS

AGREE THAT TO ESTABLISH A VALID RELI-

GIOUS ACCOMMODATION CLAIM, A PLAINTIFF

MUST FIRST NOTIFY HER EMPLOYER OF HER

RELIGIOUS BELIEF

A. The Circuits Concur With the Fourth Circuit’s Rul-

ing That Religious Accommodation Claims Are

Analyzed Under a Two-Part Framework

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a) (“Title VII’), makes it unlawful for an

employer to discriminate against an employee due to her

religion: “It shall be an unlawful employment practice for

an employer . . . to discriminate . . . against any individ-

ual .. . because of such . . . individual's . . . religion . . .”

42 U.S.C. § 2000e-2(a)(1). In addition to the statute’s

general prohibition of religious discrimination, Title VII

also imposes an affirmative duty on employers to “rea-

sonably accommodate” the religious needs, observances,

and practices of employees unless an accommodation

would result in “undue hardship on the conduct of the

employer’s business.” 42 U.S.C. § 2000e(j).?

2“The reasonable accommodation duty was incorporated into

[Title VII] somewhat awkwardly, in the definition of religion. ...

Section 701(j) was added in 1972 to illuminate the meaning of

religious discrimination under the statute. It provides that ‘{the]

term “religion” includes all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate to an employee’s or prospec-

tive employee’s religious observance or practice without undue

hardship on the conduct of the employer’s business.’” Ansonia

Bd. of Educ. v. Philbrook, 479 U.S. 60, 62 n.1 (1986).

Religious accommodation claims are analyzed under a

two part framework. First the employee must establish

a prima facie case of religious discrimination by proving

that: (1) she had a bona fide religious belief, the practice

of which conflicted with a job requirement; (2) she in-

formed her employer of the belief and conflict; and (3)

the employer threatened her with or subjected her to dis-

Criminatory treatment because of her inability to fulfill

the job requirement. Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60, 65 (1986) (stating that the Court of Ap-

peals utilized the above formulation and affirming the

judgment of the Court, but remanding to the District

Court for additional findings); Turpen v. Missouri

K. T. R. Co., 736 F.2d 1022, 1026 (Sth Cir. 1984);

Getz v. Pennsylvania Dep’t of Public Welfare, 802 F.2d

72, 73 (3d Cir. 1986); EEOC v. Arlington Transit Mix,

Inc., 957 F.2d 219, 221-22 (6th Cir. 1991); Beasley v.

Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir.

1991); Johnson v. Angelica Uniform Group, Inc., 762

F.2d 671, 673 (8th Cir. 1985); Heller v. EBB Auto

Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Toledo v.

Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989),

cert. denied, 495 U.S. 948 (1990). Only after the em-

ployee has established a prima facie case does the burden

shift to the employer to show that it was unable to reason-

ably accommodate the employee’s religious practice with-

out undue hardship.* /d.

8 As grounds for this Court to grant her petition for a writ of

certiorari, Petitioner alleges that the Fourth Circuit’s ruling “con-

flicts with the decisions of other courts of appeals and with Title

VII itself by failing to require the defendant to demonstrate that

it is ‘unable to reasonably accommodate to the religious practice

without undue hardship on the conduct of the employer’s business.’ ”

Petition at 4. This argument is not well taken. The Circuits agree

that only after an employee has established a prima facie case of

religious discrimination must the employer show that it was unable

to reasonably accommodate the employee’s needs without undue hard-

ship. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 65 (1986)

B. The Fourth Circuit’s Ruling That Petitioner Failed

to State a Prima Facie Case of Religious Accommo-

dation Discrimination Because She Did Not Notify

Her Employer That Her Religion Required Her to

Write Personal Disturbing Letters to Her Co-

Workers Is Consistent With the Rulings of Other

Circuits

The Fourth Circuit, below, ruled that Petitioner failed

to state a claim of religious accommodation discrimination

because she did not notify her employer that her religion

required her to write and send accusatory letters to her

co-workers at their homes:

Chalmers has alleged that she holds bona fide reli-

gious beliefs that caused her to write the letters.

Tulon offers no evidence to the contrary. The parties

agree that Tulon fired Chalmers because she wrote

the letters. Accordingly, Chalmers has satisfied the

first and third elements of the prima facie test. How-

ever, in other equally important respects, Chalmers’

accommodation claim fails.

(stating that the Court of Appeals utilized the above formulation

and affirming the judgment of the Court, but remanding to the

District Court for additional findings); Turpen v. Missouri K.T.R.

Co., 736 F.2d 1022, 1026 (5th Cir. 1984); Getz v. Pennsylvania

Dep’t of Public Welfare, 802 F.2d 72, 73 (3d Cir. 1986); EEOC

v. Arlington Transit Mix, Inc., 957 F.2d 219, 221-22 (6th Cir.

1991); Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088

(7th Cir. 1991); Johnson v. Angelica Uniform Group, Inc., 762

F.2d 671, 673 (8th Cir. 1985); Heller v. EBB Auto Co., 8 F.3d

1433, 1438 (9th Cir. 1993); Toledo v. Nobel-Sysco, Inc., 892 F.2d

1481, 1486 (10th Cir. 1989), cert. denied, 495 U.S. 948 (1990).

The Fourth Circuit held that Petitioner failed to establish a prima

facie case of religious discrimination: “Chalmers cannot satisfy the

second element of the prima facie test. She has forecast no evidence

that she notified Tulon that her religious beliefs required here to send

personal, disturbing letters to her co-workers.” Chalmers, 101 F.3d

at 1021. Because Petitioner did not establish a prima facie case of

religious discrimination there was no need for the Fourth Circuit

to require Respondent to “demonstrate that it is ‘unable to reason-

ably accommodate to the religious practice without undue hardship

on the conduct of the employer’s business.’” Petition at 4.

Chalmers cannot satisfy the second element of the

prima facie test. She has forecast no evidence that

she notified Tulon that her religious beliefs required

her to send personal, disturbing letters to her co-

workers. Therefore, she did not allow the company

any sort of opportunity to attempt reasonable accom-

modation of her beliefs.

Chalmers, 101 F.3d at 1021.

Contrary to Petitioner’s assertion, the Fourth Circuit's

ruling does not “create[] a different standard from that

used by other Circuits” in religious accommodation cases.

Petition at 3. Rather, the Circuits agree that to make out

a religious accommodation claim, a plaintiff must establish

that she informed her employer of her religious needs.

Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481

(2d Cir. 1985) (quoting Turpen v. Missouri K. T. R.

Co., 736 F.2d 1022, 1026 (Sth Cir. 1984)), affd on

other grounds, 479 U.S. 60, 65 (1986)); Chrysler Corp.

v. Mann, 561 F.2d 1282, 1286 (8th Cir. 1977), cert.

denied, 434 U.S. 1039 (an employee disinterested in in-

forming his employer of his religious needs “may forego

_ the right to have his beliefs accommodated by his em-

ployer”); Johnson v. Angelica Uniform Group, Inc., 762

F.2d 671, 673 (8th Cir. 1985) (religious accommodation

case requires proof that plaintiff “has informed his em-

ployer” about his religious needs); Redmond v. GAF

Corp., 574 F.2d 897, 901 (7th Cir. 1978) (religious

accommodation case includes a “requirement that plaintiff

inform his employer of . . . his religious needs”); Heller

v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993)

(religious accommodation plaintiff must inform his em-

ployer of his religious need); Smith v. Pyro Mining Co.,

827 F.2d 1081, 1085 (6th Cir. 1987), cert. denied, 485

U.S. 989 (1988) (religious accommodation case requires

plaintiff to inform his employer about his religious need).

As the Fourth Circuit has correctly observed, and as

Petitioner herself has admitted, Petitioner did not notify

Tulon at any time that her religion required her to write

proselytizing letters to her co-workers (one of them a

subordinate) “criticizing them for assertedly ungodly,

shameful conduct” nor did she otherwise notify Tulon that

she held religious beliefs requiring accommodation.

Chalmers, 101 F.3d at 1020. Thus, Petitioner clearly has

failed to state a prima facie case of religious discrimina-

tion.

1. The Conflict in the Circuits Alleged by Petitioner

Is Illusory, as the Fourth Circuit’s Decision Does

Not Conflict With the Decisions of Other Circuits

Petitioner attempts to circumvent her fatal failure to

provide notice of a religious need to proselytize by chal-

lenging the Fourth Circuit’s characterization of the notice

requirement as an “advance notice requirement.” Petition

at 4-11.* Petitioner contests the Fourth Circuit’s char-

acterization of the notice requirement by asserting that it

conflicts with the holdings in: Wilson v. U.S. West Com-

munications, 58 F.3d 1337 (8th Cir. 1995); Brown vy.

Polk County, 61 F.3d 650 (8th Cir. 1995), cert. denied,

US. , 116 S. Ct. 1042 (1996); and Heller v.

EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993). Petition

at 4.

In Heller v. EBB Auto Co., an employee, whose wife

was converting from Catholicism to Judaism, wanted to

take time off from work to attend his wife’s conversion

ceremony. 8 F.3d at 1437. Though one manager initially

granted his request for time off, permission subsequently

was revoked by another member of management, and the

employee filed suit under Title VII. Jd. at 1437-38. The

employer sought to dismiss the action on the basis that,

*The Fourth Circuit stated: “In sum, Chalmers has not pointed

to any evidence that she gave Tulon—either directly or indirectly—

advance notice of her need for accommodation. For this reason,

Chalmers has failed to establish a prima facie case of discrimination

under the religious accommodation theory.” 101 F.3d at 1021.

inter alia, “Heller never explained [to his employer] the

nature of the ceremony.” /d. at 1439.

With respect to the substance of the notice required,

not the time at which notice was given, the Heller court

stated: “A sensible approach would require only enough

information about an employee’s religious needs to permit

the employer to understand the existence of a conflict

between the employee’s religious practices and the em-

ployer’s job requirements.” Jd. In Heller, the Ninth Cir-

cuit held that the employee’s notice was satisfactory under

Title VII because, contrary to the instant case, the em-

ployer had been told that Heller was Jewish and that his

wife was studying for conversion before Heller requested

time off. Moreover, when Heller requested the time off,

“he informed [the employer] why he needed to miss

work.” Id.

Consistent with the Fourth Circuit, below, and other

cases addressing this issue, the Heller court emphasized

that to be protected by Title VII a plaintiff must notify

her employer of her religious belief. Jd. at 1438. Unlike

the plaintiff in Heller, Petitioner —did not notify Tulon

at any time of her religious need to proselytize. Accord-

ingly, contrary to Petitioner’s assertion, the Fourth Cir-

cuit’s holding in the instant case is not inconsistent with

the holding in Heller.

Petitioner also inexplicably maintains that the Fourth

Circuit’s characterization of the notice requirement con-

flicts with the holding in Wilson v. U.S. West Communica-

tions, 58 F.3d 1337 (8th Cir. 1995). Petition at 4. In

Wilson, the employer asked the plaintiff to cover a graphic

anti-abortion button she wore while at work. 7d. at 1338.

The plaintiff refused, and the employer ultimately fired

her. On appeal, the Eighth Circuit considered only

whether the employee’s religious beliefs were sincerely

held and whether the employer’s proposed accommodation

was reasonable; not whether or when the plaintiff notified

the employer of a religious need to wear the pin. 7d.

Given that the Wilson court did not contemplate the issue

of notice, it is not possible for the Fourth Circuit’s char-

acterization of the notice requirement to be incompatible

with the Eighth Circuit’s ruling.

Finally, Petitioner alleges that the Fourth Circuit’s char-

acterization of the notice requirement is inconsistent with

the Eighth Circuit’s holding in Brown v. Polk County,

61 F.3d 650 (8th Cir. 1995), cert. denied, 116 S. Ct.

1042 (1996). In Brown, the plaintiff, a born-again

Christian, was the director of the data processing depart-

ment for Polk County, Iowa. 61 F.3d 650, 652 (8th Cir.

1995). An internal investigation into religious activities

conducted on government time revealed that Brown di-

rected a secretary to type Bible study notes for him, said

prayers with other employees in his office, and quoted

Bible passages in the workplace. Brown was reprimanded

by Polk County for engaging in religious conduct in the

workplace. Subsequently, on another occasion, Brown

was asked to remove religious items from his office.

Several months later, Brown was discharged after an

internal investigation into personal use of county com-

puters by employees. Brown sued the county for religious

discrimination. Jd. at 652-54.

The Brown case is inapposite to the Fourth Circuit’s

characterization of the notice requirement for multiple

reasons. First, because the Brown case involved Polk

County, a public employer, the Eighth Circuit heeded both

the First Amendment and Title VII in determining the

legitimacy of the employer’s actions. Jd. In contrast, Tulon

is a private employer not subject to the constraints of

the First Amendment. Second, at issue in the Brown case

was whether the plaintiff’s failure to request an accommo-

dation for his religious conduct precluded him from bring-

ing a religious discrimination claim under Title VII. /d.

The Eighth Circuit did not address whether the employee

was obliged to notify his employer in advance of a reli-

gious need to engage in seditious conduct. Moreover, the

Brown court’s holding was that, under the particular cir-

cumstances of that case, the employer was aware of the

plaintiff's need for an accommodation. Jd. The Eighth

Circuit did not rule, as Petitioner suggests, that an em-

ployee is under no obligation to notify her employer prior

to engaging in religiously-motivated misconduct.

Accordingly, the conflict in the Circuits alleged by Peti-

tioner is illusory. Each of the cases cited in the Petition

can be reconciled with the Fourth Circuit’s ruling. Indeed,

the EEOC’s own Guidelines on Discrimination Because of

Religion support the Fourth Circuit’s holding that a plain-

tiff must notify her employer of her religious needs before

the employer is required to undertake a reasonable accom-

modation: “(c) Reasonable Accommodation (1) After

an employee or prospective employee notifies the employer

... Of his or her need for a religious accommodation, the

employer has an obligation to reasonably accommodate

the individual’s religious practices.” 29 C.F.R. § 1605.2

(c)(1) (emphasis added).

Even assuming, arguendo, that the Fourth Circuit’s

characterization of the notice requirement is incorrect, the

fact remains that, despite her cognizance of the potential

workplace disruption which likely would result from her

conduct, Petitioner at no time notified Tulon that her

religion required her to write accusatory proselytizing let-

ters to her co-workers. Because Tulon was never notified

of Petitioner’s religious needs, Petitioner has failed to state

a prima facie case of religious discrimination and the

Fourth Circuit’s holding is correct.

2. The Instant Case Is Analogous to, and Consistent

With, Cases in Which an Employee Engages in

Misconduct, and Only After Being Disciplined,

Notifies the Employer of Her Religious Need to

Engage in the Misconduct

When an employee engages in misconduct resulting in

discipline and only then informs her employer that she

had a religious need to engage in the conduct at issue,

courts consistently have held that the employee has failed

to state a prima facie case of religious discrimination. It

is the notice to the employer that triggers the employer’s

duty to seek a means of accommodation, for only when

an employer has advance notice of a conflict between

religious needs and the employment requirements is it

possible for an employer to attempt to accommodate those

needs.

For example, in Johnson v. Angelica Uniform Group,

Inc., a plaintiff who failed to notify her employer in ad-

vance of her religious need to miss work was not entitled

to bring a religious discrimination claim against her em-

ployer. 762 F.2d 671, 673 (8th Cir. 1985). In Johnson,

the plaintiff wrote a letter to her employer stating she

would be absent from work from October 11 through

October 24 for religious purposes. The employer did not

receive Johnson’s letter until October 13, after it had

terminated her employmnet for unexcused absence. /d.

As in the instant case, Johnson’s failure to notify her

employer in advance of her religious needs deprived the

employer of an opportunity to attempt accommodation.

The Eighth Circuit held that she failed to satisfy the notice

requireemnt of a prima facie case of religious discrimina-

tion:

Johnson clearly did not satisfy the notice element of

the prima facie requirements. Had Johnson informed

[her employer of her religious needs] at least prior to

her absences for religious purposes, her employer

would have had the chance . . . to work out an ar-

rangement . . . Because Johnson failed to give the

required notice, it is clear that her termination was

due to excessive absenteeism and not because of a

conflict between an employment requirement and her

religious faith.

Id. at 673.

Similarly, in Spencer v. North American Salt Company,

the Tenth Circuit recently upheld summary judgment in

favor of the employer where an employee failed to notify

the employer of his religious objection to a workplace

rule. 1997 U.S. App. LEXIS 601, *7 (10th Cir. Janu-

ary 15, 1997). In Spencer, the employee, a member of

the Faith Apostolic Tabernacle Church, required medical

attention to remove foreign particles from his eye on four

occasions. After his fourth injury Spencer was required

by his employer to wear safety glasses in the workplace.

After being observed three times without safety glasses,

Spencer was discharged, and filed a charge of religious

discrimination. /d. at *3-4.

As in the instant case, Spencer’s charge of discrimina-

tion was the first time he asserted a religious belief was

behind his misconduct. Jd. at *7. On appeal, the Tenth

Circuit upheld the district court’s grant of summary judg-

ment in favor of the employer:

Mr. Spencer argues that the goggle requirement was

absurd and therefore contrary to his religious duty

to secure rightfulness, truth and order. However, Mr.

Spencer failed to show that he informed the company

of a connection between his religious beliefs and his

failure to wear goggles during the work day. The dis-

trict court properly entered summary judgment on

the religious discrimination claim.

Id.

In Cary v. Carmichael, an employee who did not notify

his employer of his religious objection to a mandatory

drug test also failed to state a prima facie case of religious

discrimination. 908 F. Supp. 1334, 1342 (E.D. Va.

1995). The Cary court found that Cary provided only

“the vaguest descriptions of a religious objection” and

concluded, “[SJurely [the] plaintiff must be required to

put forth more to the employer before the employer can

fairly be found to have notice of a bona fide religious

objection.” Jd. at 1344. The notice requirement, accord-

ing to Cary, “goes directly to the heart of the statute,”

and “if an employer has not been given adequate notice

of an employee’s religious conflict, then ipso facto the

religious animus that the statute was designed to prevent

cannot have existed.” Id.

The Cary court described the purpose of the notice

requirement as follows:

Without notice, an employer cannot be found to have

acted “because of” the religious conflict... It stands

to reason then, that a discharge of an employee for

failure to comply with valid employment require-

ments, where the employer does not have sufficient

knowledge of an employee’s religious beliefs or prac-

tice despite the fact that the employer knows that a

conflict has arisen, cannot be held to violate the

statute.

Id. at 1345-46. As in the instant case, Cary’s failure to

properly notify his employer of his religious beliefs “pre-

clude[d] any finding that [he] was fired because of his

religious beliefs.” Id.

In EEOC v. J.P. Stevens and Co., an employee dis-

charged for failing to notify his employer in advance of

a religious need not to work on Sunday also failed to

establish a prima facie case of religious discrimination.

740 F. Supp. 1135, 1136 (E.D.N.C. 1990). In J.P.

Stevens, the employer frequently required employees to

work on Sundays. Any employee who did not wish to

work on Sunday was required to find his own replace-

ment by utilizing a “swap system” or he would receive

an unexcused absence. Jd. at 1137. One employee, Mr.

Dial, a member of the “Holiness” religious sect, believed

that working on Sundays was a violation of his religious

tenets. Id. at 1136. Mr. Dial also believed that it was

a sin to recruit someone else to work in his stead. Mr.

Dial did not inform his employer of his religious needs,

and, ultimately, the employer discharged him for excessive,

unexcused absence. At trial, the District Court held that

Mr. Dial could not state a prima facie case of religious

discrimination because he did not inform his employer of

his religious needs. /d. at 1137.

The instant case plainly is analogous to Johnson,

Spencer, Cary, and J.P. Stevens, wherein employees en-

gaged in misconduct, and only after being disciplined,

notified their employers of their religious need to engage

in the misconduct. In each of those cases, as in the instant

case, the courts ruled that the plaintiff had failed to

satisfy the notice requirement of a prima facie case of

religious discrimination. Because Petitioner “forecast no

evidence that she notified Tulon that her religious needs

required her to send personal, disturbing letters” to her

subordinates and co-workers, the Fourth Circuit cor-

rectly held, consistent with other Circuits, that her religious

accommodation claim must fail.

Ill. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE IN TRANS

WORLD AIRLINES v. HARDISON THIS COURT

REJECTED THE NOTION THAT RELIGIOUS OB-

SERVERS ARE ENTITLED TO EXEMPTION FROM

WORKPLACE RULES

The petition for writ of certiorari should be denied

because the ruling sought by Petitioner conflicts with this

Court’s holding in Trans World Airlines v. Hardison, 432

U.S. 63, 81 (1977). Petitioner’s interpretation of Title

VII would permit employees to use religion as a shield

for the consequences of their misconduct, resulting in

unequal treatment of similarly situated employees and

yielding a chaotic workplace. If this Court adopts Peti-

tioner’s view, employers will be forced to tolerate unan-

ticipated misconduct by religious observers while non-

religious employees will be disciplined or discharged for

engaging in identical conduct. Such a result was rejected

in Trans World Airlines v. Hardison wherein this Court

held that “Title VII does not contemplate such unequal

treatment.” 432 U.S. 63, 81 (1977).

This is not a case in which an unwitting employee was

disciplined for engaging in mmocuous conduct of a re-

ligious nature. To the contrary, Petitioner knowingly

engaged in conduct that was inconsistent with her job

duties. Petitioner conceded that it was part of her super-

visory responsibility to promote harmony in the workplace

and set an example for her subordinates, -yet ‘the ‘letters

tacitly acknowledge her cognizance of potential damage

to relations with Mr. LaMantia and Ms. Combs. For

example, in her letter to Mr. LaMantia Petitioner wrote:

“I wrote this letter at home so if you have a problem

with it you can’t relate it to work.” Similarly, in her

letter to Ms. Combs Petitioner wrote: “You probably

do not want to hear this at this time.” Chalmers, 101

F.3d at 1015.

Dissemination of accusatory, disturbing letters to sub-

ordinates and co-workers which result in disruption of

the workplace is misconduct sufficient to warrant dis-

charge of any supervisor, regardless of their religious needs.

Employers must be permitted to discipline a member of

management who engages in such conduct, irrespective

of religious motivation, or the workplace will become

chaotic and unmanageable. While it is clear that Title

VII protects an individual’s status as a religious observer,

it is equally clear that a company need not tolerate mis-

conduct on the job.

To impose liability against an employer who discharges

a supervisor under the circumstances present in this case

would indirectly but unmistakably undermine the spirit

of Title VII. Congress intended Title VII to put religious

persons on equal footing with other employees in regard

to employment decisions. As this Court has recognized,

however, the statute was not intended to create a right to

preferential treatment:

The repeated, unequivocal emphasis of both the Jan-

guage and the legislative history of Title VII is on

eliminating discrimination in employment, and such

discrimination is proscribed when it is directed against

majorities as well as minorities. (Citation omitted)

Indeed, the foundation of Hardison’s claim is that

TWA and IAM engaged in religious discrimination

in violation of 703(a)(1) when they failed to ar-

range for him to have Saturdays off. It would be

anomalous to conclude that by ‘reasonable accommo-

dation’ Congress meant that an employer must deny

the shift and job preference of some employees, as

well as deprive them of their contractual rights, in

order to accommodate or prefer the religious needs

of others, and we conclude that Title VII does not

require an employer to go that far.

Hardison, 432 U.S. at 81.

This Court should not, in its effort to protect the rights

of one group of individuals, lose sight of the rights of

others. As the Eighth Circuit observed with respect to an

employee who claimed his religion entitled him to violate

a workplace rule:

[Plaintiff's] discharge stemmed from his knowing vio-

lation of company rules pertaining to company prop-

erty. That [Plaintiff]’s religion somehow made him

feel justified in violating a rule on corporate property

simply does not suffice to imbue [the employer]’s ac-

tion in discharging him with religious animus. [Plain-

tiff]’s discharge was caused by his violation of com-

pany rules of conduct. It was not the result of antag-

onism by [the employer] to his religious beliefs and

did not violate Title VII.

Chrysler Corp. v. Mann, 561 F.2d 1282, 1286 (Sth Cir.

1977), cert. denied, 434 U.S. 1039.

If this Court grants certiorari, religious observers will

perceive immunity from workplace rules. Accepting Peti-

tioner’s view of Title VII would say to a religious ob-

server: “because your religious needs required you to

engage in misconduct, we will lighten the sanction by let-

ting you keep your job in circumstances where anyone

else who engaged in the same behavior would lose it.”

See, e.g., Despears v. Milwaukee County, 63 F.3d 635,

637 (7th Cir. 1995); Maddox vy. University of Tenn., 62

F.3d 843, 848 (6th Cir. 1995); Landefeld vy. Marion

General Hospital, 2 Am. Disabilities Cas. (BNA) 900

(6th Cir. 1995); Siefken vy. Village of Arlington Heights,

65 F.3d 664, 666 (7th Cir. 1995); Crawford v. Runyon,

3 Am. Disabilities Cas. (BNA) 1326 (8th Cir. 1994);

and Collings v. Longview Fibre Co., 63 F.3d 828 (9th

Cir. 1995), cert. denied, 116 S. Ct. 71] (1996) (all

rejecting the notion that the disabled are privileged to

engage in workplace misconduct by virtue of their

disability).

It is true that employers are required to provide reason-

able accommodation to the known religious beliefs of an

employee. However, it is not a reasonably required accom-

modation for an employer to overlook disruptive workplace

behavior. The refusal to excuse, or even alleviate the pun-

ishment of a religious individual who engages in mis-

conduct of the sort present here is not discrimination

against that individual on the basis of her religion; it

is a refusal to discriminate in her favor. This Court

already has held that: “Title VII does not contemplate

such unequal treatment.” Hardison, 432 U.S. at 81.

CONCLUSION

For the foregoing reasons, Tulon respectfully requests

that this Court deny certiorari in this case.

Respectfully submitted,

Davpp E. NAGLE

Counsel of Record

ELLEN DuFry McKay

LECLAIR RYAN

707 East Main Street

Richmond, Virginia 23219

(804) 783-2008

June 27, 1997 Attorneys for Respondent

APPENDIX

OLR A RO

APPENDIX

UNITED STATES COURT OF APPEALS.

FOR THE TENTH CIRCUIT

No. 96-3087

DONALD E. SPENCER,

Plaintiff-A ppellant,

Vv.

NorTH AMERICAN SALT COMPANY, CHUCK NICHOLS,

JoEL DAVENPORT AND BuRL DOCKUM,

Defendants-A ppellees.

January 15, 1997, Filed

Before EBEL and HENRY, Circuit Judges, and

DOWNES,* District Judge.

OPINION

BY: ROBERT H. HENRY

ORDER AND JUDGMENT **

After examining the briefs and appellate record, this

panel has determined unanimously that oral argument

* Honorable William F. Downes, District Judge, United States

District Court for the District of Wyoming, sitting by designation.

** This order and judgment is not binding precedent, except under

the doctrines of law of the case, res’ judicata, and collateral estoppel.

The court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3.

would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.

The case is therefore ordered submitted without oral

argument.

Appearing pro se, Donald E. Spencer appeals the dis-

trict court’s order entering summary judgment in favor of

his former employer, North American Salt Company, and

individual managers, Chuck Nichols, Joel Davenport and

Burl Dockum,* on his claims of religious discrimination

and retaliatory discharge. Mr. Spencer also contends that

the district court erred in assessing costs against him.

Upon consideration of the record and the parties’ written

arguments, we affirm.

BACKGROUND

Mr. Spencer, a member of the Faith Apostolic Taber-

nacle Church, was employed by the company as an engine

room operator and general laborer until his discharge on

June 12, 1992. On four occasions between July 1991

and January 1992, Mr. Spencer needed medical attention

to remove a foreign particle from his left eye. After the

fourth injury, the company told Mr. Spencer that he must

take the additional precaution of wearing goggles over his

safety glasses at all times during the work day or be

subject to disciplinary action, including suspension and

discharge.

On April 8 and April 29, 1992, Mr. Spencer was

observed without goggles and warned in writing that he

would be discharged if it happened again. When he was

observed without goggles on June 12, he was discharged.

Interspersed with the company’s disciplinary measures

were Mr. Spencer’s contacts with federal and state agen-

1 This order and judgment refers to all appellees, including Mr.

Dockum (Mr. Spencer’s immediate supervisor), Mr. Davenport (the

production manager) and Mr. Nichols (the plant manager) as “the

company.”

cies: (1) a claim for medical expenses related to the

fourth eye injury, filed with the Kansas Department of

Human Resources, Division of Workers’ Compensation

on April 15; (2) charges alleging asbestos exposure and

unsafe personal protective equipment, filed with the Occu-

pational Safety and Health Administration (OSHA) on

April 30 and May 4 and later referred to the Mine Safety

and Health Administration (MSHA); and (3) a com-

plaint about a company policy that allegedly required him

to work ten minutes a day without compensation, filed

with the Wage and Hour Division of the United States

Department of Labor on May 7. After his termination,

Mr. Spencer filed a charge of religious discrimination

with the Equal Employment Opportunity Commission

(EEOC) and the Kansas Human Rights Commission

(KHRC).

The company decided to pay the workers’ compensa-

tion claim for medical expenses associated with the fourth

eye injury. Mr. Spencer had no success with the re-

mainder of his administrative charges.”

Mr. Spencer filed a complaint in the Kansas state

courts alleging retaliatory and discriminatory discharge.

The company removed the action to federal court; con-

ducted discovery, including a lengthy deposition of Mr.

Spencer; and moved for summary judgment. The district

court granted the company’s motion and awarded costs

in the amount of $3,397.62.

DISCUSSION

The district court liberally construed Mr. Spencer’s

pleadings and identified the following claims: (1) religious

2 The MSHA determined that there was no asbestos or equipment

hazard and the EEOC and the KHRC found no probable cause to

support the religious discrimination claim. The record does not

reflect the outcome of the wage and hour claim.

8 Mr. Spencer’s deposition took place from December 6th to 8th,

1994 and on January 3ilst, 1995.

discrimination. in. violation of Title VIE of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a) (1); (2) retaliatory

discharge in violation of the Fair Labor Standards Act

(FLSA), 2% U.S.C. §.215(a) (3); and (3) common law

retaliatory discharge in violation of Kansas public policy.

The court analyzed each of the claims according to

the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d

668, 93 S. Ct. 1817 (1973), then entered summary judg-

ment in favor of the company. The court found that Mr.

Spencer had failed to make a prima facie showing on

any claim, in that he had not come forward with evidence

to support an inference of either religious discrimination

or a causal connection between his discharge and his

administrative filings. Alternatively, it determined that

the company had articulated a legitimate reason for the

discharge and that Mr. Spencer had not introduced evi-

dence: of pretext.

On appeal, Mr. Spencer argues that the entry of sum-

mary judgment was erroneous because the motivation for

his termination was an issue of material fact that pre-

cluded summary judgment. We review de novo the grant

or denial of a summary judgment motion, applying the

same legal standard as the district court. Marx v. Schnuck

Markets, Inc.,. 76 F.3d 324, 327 (10th Cir.), cert de-

nied, 135 L. Ed. 2d 1071, 116 S. Ct. 2552 (1996).

Summary judgment is appropriate only if there are no

genuinely disputed material issues of fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P 56(c).

As Mr. Spencer is making a Title VII claim of religious

discrimination, he must establish a prima facie case by

proving: “1) he . .. has a bona fide religious belief

that conflicts with an employment requirement; (2) he

. .. informed the employer of this belief; [and] (3) he...

was [fired] for failure to comply with the conflicting

employment requirement.” Toledo v. Nobel-Sysco, Inc.,

892 F.2d 1481, 1486 (10th Cir. 1989).

Mr. Spencer argues that the goggle requirement was

absurd and therefore contrary to his religious duty to

secure rightfulness, truth and order. However, Mr. Spencer

failed to show that he informed the company of a connec-

tion between his religious beliefs and his failure to wear

goggles during the work day. The district court properly

entered summary judgment on the religious discrimination

claim.

Similarly, Mr. Spencer produced no facts in support of

his contention that he was discharged in retaliation for

complaining to administrative agencies. The relevant legal

theories are retaliatory discharge under § 215(a) of the

FLSA for the report of an alleged wage and hour violation

and under Kansas common law for the workers’ compen-

sation claim and OSHA/MSHA charges.

The applicable standards are similar for both theories.

The Tenth Circuit applies a “motivating factor” analysis

to claims of retaliatory discharge under § 215(a). A dis-

charge is unlawful “only if it would not have occurred but

for the retaliatory intent.” McKenzie v. Renberg’s Inc.,

94 F.3d 1478, 1483 (10th Cir. 1996), quoting Martin v.

Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th

Cir. 1992). In a Kansas common law action for retalia-

tory discharge, the plaintiff must establish by a “prepon-

derance of the evidence,” which is “clear and convincing

in nature, that the defendant, among other things, termi-

nated him or her in retaliation for filing a claim under

the Workers’ Compensation Act. Ortega v. IBP, Inc., 255

Kan. 513, 874 P.2d 1188, 1196, 1198 (Kan. 1994).

The district court decided that Mr. Spencer fled to

create an evidentiary dispute on the related issues of

causation and pretext. We agree. The facts alleged by

Mr. Spencer provide no inference of a causal connection

between his agency filings and his subsequent discharge.

The umncontroverted evidence demonstrates that Mr.

Spencer was discharged for his third breach of the goggle

requirement. When an employee fails to come forward

with sufficient evidence to raise a genuine dispute on an

essential element of a retaliatory discharge claim or the

employer’s intent, the district court may properly grant

an employer’s motion for summary judgment. See Koop-

man v. Water Dist. No. 1, 972 F.2d 1160, 1164 (10th

Cir. 1992).

Mr. Spencer’s final contention on appeal is that the

clerk of the district court’s award of costs to the company

was erroneous. See Fed. R. Civ. P. 54(d)(1). He spe-

cifically objects to the assessment of $2,938.40 for tran-

scripts of his three-and-a-half days of deposition testimony.

The award of costs is affirmed for two reasons. First,

Mr. Spencer failed to preserve the alleged error by request-

ing judicial review of the action of the clerk. See Fed.

R. Civ. P. 54(d)(1). Second, we review an award of

costs only for abuse of discretion. See Treff v. Galetka,

74 F.3d 191, 197 (10th Cir. 1996). A trial court may

tax as costs the “fees of a court reporter for all or any

part of the stenographic transcript necessarily obtained for

use in the case.” 28 U.S.C. § 1920(2). Although the

four volumes of deposition transcripts seem to represent

“piling on,” and probably were not necessary to the com-

pany’s summary judgment motion, we cannot conclude

that the award of costs amounted to an abuse of discre-

tion.

The judgment of the United States District Court for

the District of Kansas is AFFIRMED. We exercise our

discretion to require the parties to pay their own costs

and expenses on appeal. The mandate shall issue forth-

with.

Entered for the Court

Robert H. Henry

Circuit Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.