Opposition Brief — Goldmeier v. Allstate Insurance

| Supreme Court, U.S.

FILED

NOV 2 4 2003

OFFICE O

No. 03-611

Jn The

Supreme Court of the Anited States

¢

DAVID A. GOLDMEIER

and TERRY C. GOLDMEIER,

Petitioners,

V.

ALLSTATE INSURANCE COMPANY,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

JON L. FLEISCHAKER, ESQ.

DINSMORE & SHOHL LLP

1400 PNC Plaza

500 West Jefferson Street

Louisville, KY 40202

(502) 540-2300

Counsel of Record for Respondent

a

—_——-,

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does an employee have a cause of action against an

employer for failure to accommodate a religious conflict

under 42 U.S.C. § 2000e(j) in the absence of proof of an

adverse job action?

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of the Supreme

Court of the United States, Respondent respectfully

submits this Corporate Disclosure Statement.

Respondent Allstate Insurance Company, an Illinois-

domiciled insurance company, is a wholly-owned subsidi-

ary of the Allstate Corporation, a Delaware corporation.

The stock of the Allstate Corporation is publicly traded. No

publicly-held entity holds 10% or more of the stock of the

Allstate Corporation.

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED.............::ssccceseseneeeeeeerseesees i

CORPORATE DISCLOSURE STATEMENT............. il

TABLE OF CONTENTS. ...........::cecceeeseeeeeeserereeeeeeeees ill

TABLE OF AUTHORITIES ............::cceseesecsseeeeeeeeene es iv

STATEMENT OF THE CASE...........::cceseeseeeeeeneeeeeees 1

REASONS FOR DENYING THE WRIT...............206 3

ARGUMENT. ...........-.cccsccscsssccccccsccccssresescccscsccscossaees 4

I. THE SIXTH CIRCUIT CORRECTLY AP-

PLIED TITLE VII SO AS TO REQUIRE PE-

TITIONERS TO DEMONSTRATE AN

ADVERSE EMPLOYMENT ACTION AS AN

ELEMENT OF THEIR PRIMA FACIE CASE... 4

Il THE CIRCUIT COURTS OF APPEALS

AGREE THAT AN ADVERSE EMPLOYMENT

ACTION IS A REQUISITE ELEMENT OF A

TITLE VII RELIGIOUS DISCRIMINATION

CLAIM FOR DAMAGE G...........::scseeeeseeseeereeeeeees 8

CONCLUSION ..........::sssccesecceecenseeceeeescereeeecaeneceuonees 12

lv

TABLE OF AUTHORITIES

Page

CASES

Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d

ATO (7th Cir. 2001) .......cessscssseesseesseeesseeeseeeessesesneeseneees 10

Burlington Industries v. Ellerth, 524 U.S. 742

(1998).......ccccsccsssscsscesssccscsscsscecesscssrssssssonsessesessesscssonseness 5, 7

Equal Employment Opportunity Commission ov.

United Parcel Service, 94 F.3d 314 (7th Cir. 1996)........ 10

Goldmeier v. Allstate Insurance Co., 337 F.3d 629

(Cth Cir, 2003) ........ccsscccsssceseeesseeeseeeseeserseensseseeessnsesssonsees 6

Knight v. Connecticut Department of Public Health,

275 F.3d 156 (2d Cir. 2001) .......cceceeeeeeeeseeeeteeeeeeeeeeeeeeers 9

Lawson v. Washington, 296 F.3d 799 (9th Cir. BOO) osisnes is

Philbrook v. Ansonia Board of Education, 757 F.2d

ATG (2d Cir. 1985)........:eecccccccsssrecssseesessnsreeecesneneeees 8,9, 10

Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir.

POOR) oreccssnescnscsscesscosnsscersonevncsevenrvonsennsssnsnsononssonvensnscnesnenee 10

Rodriguez v. City of Chicago, 975 F. Supp. 1055

(N.D. T11. 1997).......scccesscessscecseessessceseessesenseessensesseneosesenses 10

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).........+ 7

Tiano v. Dillard Department Stores, 139 F.3d 679

(Oth Cir, 1998) .......ccccsscccssssessesseesesesesereeensseesresesneseneres 11

Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th

Ce BBD vi secscnvessnscnssncensasebvsconcrsnenoonineevecnavarresernsncoreonsas 10

Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d

1022 (5th Cir. 1984).........ccssscceesseeessseeeeeseeesesesneeeseneeseens 9

Wright v. Runyon, 2 F.3d 214 (7th Ce, TOG) a cinsccvacecessssvess 10

TABLE OF AUTHORITIES — Continued

Page

STATUTES

AZ U.S.C. § 2000€(j)........esecccsesrecessneeeeeeeseeeceseesessneessseeseensees 5

AZ U.S.C. § 2000€-2(a)(1) .....ceeseeeessreeeesesreeeeeseesseseeneeseeees 4

OTHER AUTHORITIES

House Report No. 102-40(I) at 64-65, reprinted in

1991 U.S.C.C.A.N. 549, 602-03... ceeeeeeeeeeeeeeeeeeeeeeees 7

1

STATEMENT OF THE CASE

In this case Petitioners David and Terry Goldmeier

(the “Goldmeiers”) seek to turn on its head the long-

established legal principle that in order to recover legal

relief, a plaintiff must have sustained some injury or

damages. They attempt to undermine Congress’s intent

that employees work with their employers to resolve

workplace conflicts posed by good-faith religious practices,

rather than merely quitting and suing. They ask this

Court to overrule the logical and well-settled jurispru-

dence of every circuit court of appeals which has held that

an employee who seeks damages for past discrimination

under Title VII of the federal Civil Rights Act of 1964 must

show that his employer took a materially adverse em-

ployment action against him. Ultimately, they cite no

authority supportive of their position and offer no real

issue worthy of this Court’s consideration.

The Goldmeiers, who are Jewish and Sabbath-

observant, worked for Allstate Insurance Company

(“Allstate”) as insurance agents for several years. In

September 1998, Allstate announced that it intended to

implement in two phases the following year a new work-

hours policy, under which Allstate agency offices were to

be open and staffed until 6:00 p.m. on weekdays from 9:00

a.m. to 1:00 p.m. on Saturdays. Though the policy did not

require that the Goldmeiers themselves staff their office

during the extended hours, the Goldmeiers perceived a

potential conflict with their observance of the Sabbath on

Friday evenings and Saturdays.

The Goldmeiers consulted with a superior and with an

Allstate human resources representative about the potential

2

conflict. Each advised them that their office expense

budget could be used to retain assistance to staff the office

during the Sabbath hours. No one at Allstate threatened

the Goldmeiers with termination, docking of pay, or any

other discipline for failure to keep their office staffed in

accordance with the prospective policy.

After indicating in writing in late October 1998 that

they intended to remain at Allstate in 1999, the Gold-

meiers suddenly resigned their employment on November

16 — fifty-three days before Allstate began to implement

the work-hours policy which might have conflicted with

their religious practices.’ Importantly, the Goldmeiers

obtained other employment before their resignation. They

cited this as an excuse why they could not work for

Allstate even after Allstate, shortly after their resignation,

contacted the Goldmeiers in December 1998 and offered to

accommodate them in full by letting them come in early

and leave early on Fridays and work Sundays instead of

Saturdays.

The Goldmeiers filed suit against Allstate in 1999,

alleging discrimination based on the proposed work-hours

policy and seeking monetary damages. The district court

ultimately found, and the court of appeals affirmed, that

the Goldmeiers had failed to state a prima facie case of

religious discrimination under Title VII because they could

1 The weekday hours policy was to go into effect on January 1,

1999; because that day was a holiday, the first Friday on which the

Goldmeiers’ religious observance possibly could have been impacted

was January 8, 1999. The Saturday hours policy was to go into effect on

July 1, 1999; the first Saturday on which the Goldmeiers’ religious

observance possibly could have been impacted was July 3, 1999.

3

not show that Allstate had taken an adverse employment

action — in the form of discharge or other discipline —

against them for failure to comply with Allstate’s proposed

work-hours policy. Now, seeking this Court’s review, the

Goldmeiers argue that the court of appeals misapplied

Title VII, defied the intent of the Civil Rights Act of 1991

(the “1991 act”), and contributed to an alleged conflict

among the circuit courts of appeals as to whether a plain-

tiff alleging Title VII religious discrimination must allege

and prove, in order to recover damages, tangible discrimina-

tion in the form of an adverse employment action.

As this brief will illustrate, the Goldmeiers’ conten-

tions are erroneous, and there is no issue in this case

which justifies this Court’s review.

¢

REASONS FOR DENYING THE WRIT

Review is inappropriate for two reasons. First, the

court of appeals’ application of Title VII comports fully

with the text of and legislative purposes behind Title VII.

Second, there is in fact no conflict among the circuits.

Review of the Goldmeiers’ cited authority reveals the

purported circuit split to be much ado about nothing. The

circuits whose authority the Goldmeiers cite concur with

2 As noted, the Goldmeiers resigned their employment, but each

court concluded that the resignations did not amount to constructive

discharge because a reasonable employee in the Goldmeiers’ position

vould not have felt compelled to quit. The Goldmeiers do not challenge

these conclusions.

4

the Sixth Circuit in requiring a Title VII religious dis-

crimination plaintiff to demonstrate some tangible harm

before permitting legal relief.

+

ARGUMENT

I. THE SIXTH CIRCUIT CORRECTLY APPLIED

TITLE VII SO AS TO REQUIRE PETITION-

ERS TO DEMONSTRATE AN ADVERSE EM-

PLOYMENT ACTION AS AN ELEMENT OF

THEIR PRIMA FACIE CASE.

The Goldmeiers first assign error by arguing that the

court of appeals misread Title VII so as to require them to

demonstrate some tangible harm as an element of their

claim for damages. The court of appeals’ application of

Title VII is logically sound, and in consonance with statu-

tory text and history as well as this Court’s past prece-

dent. >

“As a matter of clear statutory language,” the Gold-

meiers contend, “an employer who fails to accommodate an

employee's religious observation has engaged in discrimi-

nation on the basis of religion, and that employee is now

entitled to maintain an action in damages.” (Petitioners’

Appendix at 13.) The Goldmeiers miss an important )

Twance. Title VII forbids discrimination against an indi-

vidual with respect to “the compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s [religion].” 42 U.S.C. § 2000e-2(a)(1). A failure

* Religion is defined to “include(] all aspects of religious observance

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

(Continued on following page)

5

to accommodate violates the law only to the extent that it

is discrimination — i.e., to the extent that it detrimentally

affects the compensation, terms, conditions or privileges of

employment. If an alleged failure to accommodate does not

materially affect* the compensation, terms, conditions or

privileges of employment, it is not actionable discrimina-

tion. The Goldmeiers have not alleged, and cannot prove,

any discrimination by Allstate because they have identi-

fied no adverse effect upon the compensation, terms,

conditions or privileges of their employment. This stands

to reason because there was nothing to accommodate; the

Goldmeiers quit and took other jobs long before the policy

for which they desired accommodation ever took effect.

The Goldmeiers further argue that Congress’s prefer-

ence for bilateral employer-employee cooperation in the

resolution of conflicts between employment requirements

and religious practices “is plainly frustrated if an em-

ployee is required to show, as part of a prima facie case,

that he has suffered discipline or discharge as a result of a

refusal to follow a work rule that conflicts with his religion.”

(Pet. App. at 11.) However, in an action for damages, an

element requiring that some materially adverse employment

action must have been taken against a plaintiff is neces-

sary, because

is unable to reasonably accommodate to an employee's ... religious

observance or practice without undue hardship. . . .” 42 U.S.C. § 2000e(j).

* Cf. Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998) (“A

tangible employment action constitutes a significant change in em-

ployment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a

significant change in benefits.”)

6

[a]bsent this requirement, a prima facie case

would lie wherever there was a sincere conflict

and compensation would be due when, in addi-

tion, the employer does not immediately adopt a

reasonable accommodation. What a successful re-

ligious discrimination claim would not require

would be any actual employer action to the det-

riment of the employee. Employers who, while

not offering a formal accommodation, deliber-

ately turned a blind eye to employees’ religiously

motivated minor deviations from the letter of

company policy — not an unusual situation one

would imagine — would suddenly find themselves

liable as civil rights offenders.

Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 637-38 (6th

Cir. 2003) (reprinted at Pet. App. at 13a-14a). Put differ-

ently, if an employer sets a policy which, if enforced, would

violate a certain employee’s Title VII rights, but then does

not enforce the policy against that employee, the employer

essentially has accommodated that employee. Likewise, if

an employer has proposed but not implemented a policy

which in application might pose a conflict and possibly

require accommodation, there can be no failure to accom-

modate because, until the policy is implemented, there is

nothing to accommodate. Either way, if there is no detri-

ment to the employee, there is no discrimination, and thus

no ground for damages.

Unsurprisingly, the Goldmeiers cite no case law which

supports their argument that, by making available com-

pensatory damages, the 1991 act operated to somehow

eviscerate the requirement that a plaintiff former em-

ployee actually have suffered some materially detrimental

job action in order to recover damages. Plaintiffs cite the

1991 act’s legislative history for the general principle that

7

compensatory damages were made available “to make

discrimination victims whole for the terrible injury to their

careers, to their mental and emotional health, and to their

self-respect and dignity.” (Pet. App. at 12, citing H.R. No.

102-40(I) at 64-65, reprinted in 1991 U.S.C.C.A.N. 549,

602-03.) However, if there is any doubt that Congress did

not intend to subject employers to compensatory damages

in the absence of harm, this legislative history settles it:

“The bill would allow compensatory damages to be

awarded only if a plaintiff proves actual injury or loss

resulting from intentional discrimination.” H.R. No. 102-

40(I), at 74, reprinted in 1991 U.S.C.C.A.N. 549, 612.

Thus, neither the plain text of the relevant portions of

Title VII, nor the legislative history behind their enact-

ment, supports the Goldmeiers’ spurious argument. Nor

does this Court’s prior precedent. See, e.g., St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993) (“the

McDonnell Douglas presumption places upon the defen-

dant the burden of producing an explanation to rebut the

prima facie case — i.e., the burden of producing evidence

that the adverse employment actions were taken for a

legitimate, nondiscriminatory reason.”) (internal quotation

marks, citation omitted); Ellerth, supra, 524 U.S. at 761

(“A tangible employment action constitutes a significant

change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly differ-

ent responsibilities, or a decision causing a significant

change in benefits.”).

The Goldmeiers were not victims of discrimination.

There was no “failure to accommodate” because the Gold-

meiers resigned and took other jobs long before there was

any conflict for Allstate to accommodate. Incredibly, the

8

Goldmeiers pursue monetary damages — a remedy for past

discrimination — because they speculate that, at some

point in the future, they would have been discriminated

against, presumably by termination or some other penalty.

It is clear from Title VII’s text and history that such

conjecture cannot be the basis of a claim for damages.

Il. THE CIRCUIT COURTS OF APPEALS AGREE

THAT AN ADVERSE EMPLOYMENT ACTION

IS A REQUISITE ELEMENT OF A TITLE VII

RELIGIOUS DISCRIMINATION CLAIM FOR

DAMAGES.

The Goldmeiers attempt to construct a circuit split

where there is none. Allstate can locate no authority which

states that a plaintiff seeking damages for failure to

accommodate need not demonstrate harm in the form of

some adverse job action.

To illustrate discord among the circuit courts, the

Goldmeiers rely primarily on Philbrook v. Ansonia Bd. of

Educ., 757 F.2d 476 (2d Cir. 1985), arguing that the

Second Circuit Court of Appeals has “expressly rejected

the ‘discipline or discharge’ element” of the prima facie

case. (Pet. App. at 7, n.1., citing Philbrook, 757 F.2d at

482-83.) This is simply incorrect, as the plain text of

Philbrook demonstrates:

We first adopt the approach to plaintiff’s prima

facie case taken by several courts of appeal: A

plaintiff in a [Title VII] case makes out a prima

facie case of religious discrimination by proving:

(1) he or she has a bona fide religious belief that

conflicts with an employment requirement, (2) he

or she informed the employer of this belief; (3) he

9

or she was disciplined for failure to comply with

the conflicting employment requirement.

Id. at 481 (citing Turpen v. Missouri-Kansas-Texas R.R.

Co., 736 F.2d 1022, 1026 (5th Cir. 1984)). This was and is

the law in the Second Circuit.’

The flaw in the Goldmeiers’ reading of Philbrook is

apparent on the face of their petition. To support their

argument that the Second Circuit has rejected the “dis-

charge or discipline” element of the prima facie case, they

quote Philbrook selectively: “While we acknowledge that

some courts have stated that discharge was required to

make a prima facie showing of discrimination, Title VII

prohibits not only discrimination in hiring and firing but

also discrimination with respect to compensation, terms,

conditions or privileges.” (Pet. App. at 7, quoting Phil-

brook, 757 F.2d at 483 (internal quotation marks omitted,

emphasis added)). When this excerpt is read in conjunc-

tion with Philbrook’s explicit adoption of a “discipline”

element, it is clear that the Second Circuit — like the other

circuits, including the Sixth -— requires an element of

“discipline or discharge.” The holding of Philbrook is that a

plaintiff need not have been discharged, but rather may

state a claim if he was disciplined.° To say that the Second

® See, eg., Knight v. Connecticut Dep't of Public Health, 275 F.3d

156, 167 (2d Cir. 2001) (“To make out a prima facie case of religious

discrimination, Knight and Quental must show (1) they held a bona fide

religious belief conflicting with an employment requirement; (2) they

- informed their employers of this belief; and (3) they were disciplined for

failure to comply with the conflicting employment requirement.”) (citing

Philbrook) (emphasis added).

* Petitioner Philbrook, in fact, had been disciplined by having his

pay docked on days he missed work to observe religious holidays. See

(Continued on following page)

10

Circuit does not require a showing of some element of

harm is simply to misread Philbrook and its progeny.

Nor does Rodriguez v. City of Chicago, 156 F.3d 771 (7th

Cir. 1998), support the Goldmeiers’ argument. Rather than

“assum[ing], without expressly deciding, that a ‘discipline or

discharge’ requirement is not a component of a failure to

accommodate claim,” as the Goldmeiers assert, in fact the

court did not address that issue simply because it was not

one preserved for and presented on appeal.’ In fact, the

Seventh Circuit, before and after Rodriguez, has required the

adverse employment action element. See, e.g., Equal Em-

ployment Opportunity Comm’n v. United Parcel Service, 94

F3d 314, 317 (7th Cir. 1996) (“An individual alleging reli-

gious discrimination must ordinarily show that: (1) a bona

fide religious practice conflicts with an employment require-

ment, (2) he or she brought the practice to the employer's

attention, and (3) the religious practice wos the basis for [an]

adverse employment decision.”) (citing Wight v. Runyon, 2

F3d 214, 216 n.4 (7th Cir. 1993)) (emphasis added); Ander-

son v. U.S.F. Logistics (IMC), Inc., 274 Fad 470, 478 n.2 (7th

Cir. 2001) (same holding, citing United Parcel Service).

Finally, the Goldmeiers assert that in Tooley v. Mar-

tin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981), the

Philbrook, 759 F.2d at 479. Accordingly, the court held, “it seems clear

that appellant suffered a detriment from the conflict between his

religious practices and the employment requirements.” See id. at 482

(emphasis added).

7 ‘The City did not contend, in its motion ‘or summary judgment

before the district court, that Rodriguez had failed to establish a prima

facie case. See Rodriguez v. City of Chicago, 975 F. Supp. 1055, 1058-59

(N.D. Ill. 1997).

11

Ninth Circuit Court of Appeals refrained from “impos[ing]

a discipline or discharge requirement in a case seeking to

enjoin the failure to accommodate.” (Pet. App. at 14.) In

fact, the court affirmed the district court’s order which

enjoined the defendant employer and labor union from

discharging the plaintiffs for failure to pay union dues.

Had the Goldmeiers remained at Allstate, had Allstate

implemented the work-hours policy, had the policy im-

pacted the Goldmeiers’ religious practices, had Allstate

refused to accommodate those practices, and had the Gold-

meiers actually been immediately threatened with discharge

or discipline, the Goldmeiers might have had grounds to sue

for an injunction to compel Allstate to accommodate them;

but those are not the circumstances in this case.

In any event, the Ninth Circuit repeatedly has stated

the elements of a prima facie case, and they are the same as

those required in other circuits. See, eg., Tiano v. Dillard

Dep’t Stores, 139 F.3d 679, 681 (9th Cir. 1998) (“This court

has established a two-part framework to analyze Title Vil

religious discrimination claims. First, the employee must

establish a prima facie case by proving that (1) she had a

bona fide religious belief, the practice of which conflicted

with an employment duty; (2) she informed her employer of

the belief and conflict; and (3) the employer threatened her

or subjected her to discriminatory treatment, including

discharge, because of her inability to fulfill the job require-

ments.”) (internal citation omitted) (emphasis added);

Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)

(same holding). In an action for damages, mere failure to

invent an accommodation is insignificant in the absence of

some discriminatory treatment.

The Second, Seventh and Ninth Circuits are fully in

accord with the Sixth Circuit on this point: to provide

12

grounds for compensatory damages, discrimination must

be manifested in some tangible adverse action. This is the

rule consistently applied throughout the circuits and

properly applied here.

+

CONCLUSION

Rather than cooperate with Allstate to resolve the

anticipated conflict, the Goldmeiers — after conveniently

lining up new jobs — suddenly quit, with no notice to

Allstate, fifty-three days before the new work-hours policy

was scheduled to go partially into effect and nearly eight

months before it was to become fully effective. Now the

Goldmeiers, with no proof of any adverse employment

action ever taken against them by Allstate, incredibly

contend that they may recover damages from Allstate

based on their speculation that a work-hours policy which

never went into effect while the Goldmeiers worked for

Allstate ultimately might have impacted their religious

practices.

No real issue of statutory interpretation or circuit

court divergence exists. Accordingly, this Honorable Court

should deny the Goldmeiers’ petition for writ of certiorari.

Respectfully submitted,

JON L. FLEISCHAKER

DINSMORE & SHOHL LLP

1400 PNC Plaza

500 West Jefferson Street

Louisville, KY 40202

(502) 540-2300

Counsel of Record for Respondent