Baker v. Home Depot (2d Cir.)
Brief as amicus
June 15, 2005

                                                        05-1069
                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE SECOND CIRCUIT
                              

BRADLEY BAKER,
     Plaintiff-Appellant, 
v.

THE HOME DEPOT,
     Defendant-Appellee.


        On Appeal from the United States District Court
             for the Southern District of New York
                                
                                
                                
   BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
             AND THE UNITED STATES AS AMICI CURIAE 
                                
                                


ERIC S. DREIBAND
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

PAUL D. RAMSHAW
Attorney

U.S. EQUAL EMPLOYMENT 
   OPPORTUNITY COMMISSION
1801 L Street, N.W., Room 7040
Washington, DC 20507
   202-663-4737 

BRADLEY J. SCHLOZMAN     
Acting Assistant Attorney General

DAVID K. FLYNN
ERIC W. TREENE
DAVID WHITE
Attorneys

U.S. DEPARTMENT OF JUSTICE
Civil Rights Division
950 Pennsylvania Ave., NW
Room 5531
Washington, DC 20530
    202-616-9405 

                      TABLE OF CONTENTS

STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 2
     1. Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
     2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . 2
     3. District Court Decision. . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT
     The District Court Erred in Ruling That Home Depot's Offer 
     to Schedule Baker to Work Later on Sundays Was a Reasonable
     Accommodation.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . .14

CERTIFICATE OF SERVICE


                      TABLE OF AUTHORITIES
                                
                                
                             CASES
                                
Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986). . . . . . . 8

Cooper v. Oak Rubber Company, 15 F.3d 1375 (6th Cir. 1994) . . . . 8-9, 12

Cosme v. Henderson, 287 F.3d 152 (2d Cir. 2002). . . . . . . . . .8, 9, 12

EEOC v. AFSCME, 937 F. Supp. 166 (N.D.N.Y. 1996) . . . . . . . . . . . . 9

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). . . . . . 9

EEOC v. Universal Manufacturing Corporation, 914 F.2d 71 (5th Cir. 1990).9

Knight v. Connecticut Department of Public Health, 275 F.3d 156
     (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . 10-11

Pickering v. Board of Education, 391 U.S. 563. . . . . . . . . . . . . .10

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) . . . . . . . 7


                    STATUTES AND REGULATIONS
                                
28 U.S.C.

      1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

      1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

      1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Title VII of the Civil Rights Act of 1964

      701(j), 42 U.S.C.  2000e(j). . . . . . . . . . . . . . . . 1, 6, 7

      703(a), 42 U.S.C.  2000e-2(a). . . . . . . . . . . . . . . . .1, 7

29 C.F.R.  1605.2(d)(1)(ii) . . . . . . . . . . . . . . . . . . . . . . 6


                     STATEMENT OF INTEREST

     Pursuant to  703(a) and 701(j) of Title VII of the Civil Rights Act of 1964,
employers covered by Title VII are prohibited from discriminating on the basis of
religion. 42 U.S.C.  2000e-2(a), 2000e(j). They also have an obligation to offer a
reasonable accommodation if an employee or prospective employee has a religious
obligation that conflicts with the employment requirements to which she would
normally be subject, unless there is no reasonable accommodation the employer can
offer without incurring undue hardship. The initial step in determining most
failure-to-accommodate claims is determining whether the accommodation the
employer offered was a reasonable accommodation. That issue is at the core of this
appeal.
     The Equal Employment Opportunity Commission is the agency established
by Congress to interpret, administer and enforce Title VII, including the duty of
reasonable accommodation that the act imposes on employers. The Civil Rights
Division of the United States Department of Justice is charged with litigating Title
VII claims against public defendants. The Commission and the Department of
Justice therefore offers the Court their views.
                   STATEMENT OF JURISDICTION
     The district court had subject matter jurisdiction over Baker's claims of
religious discrimination pursuant to 28 U.S.C.  1331 (federal question) and
1343(a)(4) (statutory civil rights claim). The district court entered a final judgment
disposing of all claims as to all parties on February 4, 2005. R-41. Baker filed a
timely notice of appeal on March 2, 2005. R-42. This Court accordingly has
jurisdiction pursuant to 28 U.S.C.  1291. 
                     STATEMENT OF THE ISSUE
     Whether the district court erred in holding that Home Depot reasonably
accommodated plaintiff's religious belief that he should not work at all on Sunday
by offering him a schedule that required him to work on Sunday afternoons or
evenings. 
                     STATEMENT OF THE CASE
     1. Proceedings

     This is an appeal from a final judgment of the United States District Court
for the Western District of New York (Telesca, J.) dismissing this Title VII action.
The plaintiff filed a pro se complaint in May 2003 alleging that Home Depot
violated Title VII by failing to reasonably accommodate his religious beliefs. R-1.
Home Depot filed an answer, R-4, and the parties engaged in discovery. Home
Depot filed a motion for summary judgment in April 2004, R-20-26, and the
district court granted that motion in late January 2005.

     2. Statement of Facts

     In March 2001, Bradley Baker was hired by Home Depot to work in its
store in Auburn, Massachusetts. R-34:  1. During the five months Baker worked
in Auburn, he came to believe that he had a religious duty to honor the Sabbath
day as "the day that all Work ceases, a day of rest and meditation of [sic] what
[G]od has created." Id.:  4. In August 2001, Baker moved to western New York
to be near his fiance. R-23, X-A: 16, 53. He interviewed at the Home Depot store
in Henrietta, New York. He told the Henrietta manager, Michael Poss, that his
religious beliefs prevented him from working on Sundays. Poss responded that
Baker would have to work it out with Shawn Forness, his department supervisor.
R-34:  5. Baker spoke with Forness, and Forness scheduled Baker so that he
never had to work on a Sunday. R-34,  6. In March 2002, Michael Woodman
replaced Forness as supervisor of Baker's department. R-23, X-A: 64. Like
Forness, Woodman and his assistant Jim Ford scheduled Baker so that he did not
have to work on Sundays. R-34:  8. It is undisputed that Baker and his family
belong to a Full Gospel Fellowship church and that they regularly attend Sunday
services there. R-23, X-A: 19, 22-24; R-35.
     In September 2002, Colleen Vorndran became the manager of the Henrietta
store. R-24:  2. The store had 120 employees. It was open seven days a week, and
Vorndran stated that Saturdays and Sundays were the store's busiest days. R-24:
 4. Vorndran stated in her affidavit (R-24:  8):
     It is essential to the business needs of the store to have all full-time
     associates fully available to work flexible schedules on any day of the
     week. Allowing one associate to consistently have Saturday or
     Sunday off would simply not meet the needs of the store, nor would it
     be fair to the other full-time associates.

     Vorndran learned from one of her assistant managers that the store had been
scheduling Baker so that he did not have to work on Sundays. R-24:  7. In late
September Vorndran summoned Baker to her office. When Baker told her, "You
know I don't work Sundays," Vorndran responded, "You will work Sundays or
you will not work here." R-23, X-A: 77-78; R-34:  12. Home Depot then
scheduled Baker to work on Sunday, October 13. On the 13th, Baker called the
store and told the manager on duty that he would not be coming in to work that
day because he "[did]n't work on Sundays" and he would be "attending church
and spending time with my family." R-23, X-A: 80-81; R-34:  13. 
     Two days later Baker was again summoned to Vorndran's office to meet
with her and Human Resources Manager Patti O'Leary. R-24:  10; R-34:  14.
Vorndran noted that he had "called in" (i.e., not reported for work) on the previous
Sunday, and gave him a verbal last-chance warning: "You've got one more
chance, and you're done. Call in on another Sunday, and I'll have to let you go."
Baker responded: "You know where I stand on my beliefs, and . . . I will not move
on my beliefs. I will not change my ways." R-23, X-A: 82. 
     Vorndran suggested that Baker could work "the closing shift" on Sundays,
but Baker explained that "Sundays are my religious day. It's not a morning[;] it's
not anything else; it's my religious day, time for my family, time for my church,
my beliefs." R-23, X-A: 84-85. Vorndran also discussed the possibility of Baker's
becoming a part-time employee, but Baker interpreted her discussion of this option
as a threat rather than an offer of accommodation. R-23, X-A: 86. Vorndran knew
that Baker had a 14-month-old daughter and that his wife was pregnant again. Id.
According to Baker, she stated: "Your other option is to go part time, and at that
point you have no guarantee of hours. I don't have to give you any hours at all if I
don't want to, . . . [but y]ou can't afford to do that. I know your situation. . . . You
need the insurance and everything else, so you need to work the Sundays.<1>" Id. 
     Home Depot scheduled Baker to work again the following Sunday, October
20. R-34:  15. When Baker did not report to work that day, he was terminated. R-
24:  15-16. Baker filed suit against Home Depot in May 2003. R-1. Home Depot
moved for summary judgment in April 2004. R-20. The district court granted that
motion in January 2005. R-40. Final judgment was entered February 4, R-41, and
Baker filed a timely notice of appeal. R-42.

     3. District Court Decision

     In its motion for summary judgment, Home Depot argued that: (a) Baker
does not have a bona fide religious belief requiring him to abstain from working
on Sundays; (b) the company offered one or more reasonable accommodations;
and (c) agreeing to Baker's demand never to work on Sundays would cause the
company undue hardship. The court rejected the company's first argument, ruling
that Baker's "affidavit explaining the genesis of his belief about the sacredness of
the Sabbath is sufficient evidence to create a jury question as to the validity of that
belief." Decision & Order ("Dec.") at 6. In addition, the court noted, it was
undisputed that Baker had "informed [Home Depot] that his religious beliefs
prohibited him from working on Sundays." Id. at 6. Moreover, since the company
fired Baker "as a result of his refusal to work on Sundays, there is no question that
he was disciplined for his religious belief." Id. Therefore, the court concluded,
Baker had "established a prima facie case of religious discrimination in violation
of Title VII." Id. 
     The district court did not reach Home Depot's third argument (on undue
hardship), because it agreed with the company's second argument (on reasonable
accommodation). The court quoted the Commission's regulation that encourages
employers and unions to consider flexible scheduling as a means of
accommodating an employee's religious practices (29 C.F.R.  1605.2(d)(1)(ii)),
and then stated: "I find as a matter of law that defendant's offer to schedule
plaintiff to work in the afternoon or evenings on Sundays, thus allowing him an
opportunity to attend his religious services, is a reasonable accommodation as
contemplated by 42 U.S.C.  2000e(j)." Id. at 8.

                      SUMMARY OF ARGUMENT

     The district court granted Home Depot summary judgment because its offer
to schedule Baker to work later on Sundays accommodated his need to attend
church services on Sundays. This was error, because the company's offer to
schedule Baker to work later on Sundays was not a reasonable accommodation of
his religious beliefs. A company's offer is not a reasonable accommodation unless
it removes the conflicts between the employee's work duties and his religious
beliefs. Home Depot's offer accommodated Baker's need to attend religious
services on Sundays, but it did not accommodate his religious duty to refrain from
working on the Sabbath. It therefore was error to grant summary judgment in favor
of Home Depot.

                            ARGUMENT

     THE DISTRICT COURT ERRED IN RULING THAT HOME DEPOT'S
     OFFER TO SCHEDULE BAKER TO WORK LATER ON SUNDAYS
     WAS A REASONABLE ACCOMMODATION.

     Title VII forbids employment discrimination on the basis of religion, and
provides that "[t]he 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 prospective employee's religious
observance or practice without undue hardship on the conduct of the employer's
business."  42 U.S.C.  2000e(j). This provision "make[s] it an unlawful
employment practice under   703(a)(1) for an employer not to make reasonable
accommodations, short of undue hardship, for the religious practices of his
employees and prospective employees." Trans World Airlines, Inc. v. Hardison,
432 U.S. 63, 74 (1977). 
     The district court first held that Baker had established a prima facie case.
The court ruled there was sufficient evidence to support a finding that Baker had a
sincere religious belief that he should not work at all on Sunday, his Sabbath. As
the court noted, this belief was based in part on Baker's belief that he must attend
church services on Sunday mornings, but also on his belief that he should refrain
from all work on the Sabbath and spend the day with his family. Dec. at 8
("Neither party disputes that plaintiff informed each person in charge of
scheduling that his religious beliefs prohibited him from working on Sundays.")
Nonetheless, the court went on to conclude that Home Depot reasonably
accommodated Baker's religious belief by offering him a schedule which would
have required him to work on Sunday afternoons or evenings. This was error.
Home Depot's proposal did not resolve the conflict between Baker's religious
beliefs and his job responsibilities. It was therefore not a reasonable
accommodation. Cosme v. Henderson, 287 F.3d 152, 159 (2d Cir. 2002) ("For any
of [defendant's] offers to have been reasonable within the meaning of  701(j), the
proposed accommodation had to have eliminated the conflict between the
employment requirement, working on Saturdays, and the employee's religious
practice of not working on the Saturday Sabbath."); see also Ansonia Bd. of Educ.
v. Philbrook, 479 U.S. 60, 70 (1986) (stating that a reasonable accommodation is
one that "eliminates the conflict between employment requirements and religious
practices").
     Cooper v. Oak Rubber Co., 15 F.3d 1375, 1377-79 (6th Cir. 1994) is
precisely on point. Cooper was a Seventh Day Adventist, and her church
prohibited its members from working between sundown Friday and sundown
Saturday, and required them to attend worship services Saturday mornings.
Cooper worked the day shift, and the company sometimes required all its day-shift
employees to work on Saturday. Her supervisor suggested that she switch to the
Monday-through-Friday night shift. The court held that this was not a reasonable
accommodation, because, just as in the case at bar, it "accommodated only one of
[the plaintiff's] concerns, that of missing church service on Saturday, but failed to
address her principal objection to working on [her Sabbath]," because she would
have to work Fridays after sundown. Id. at 1379. "An employer," the court ruled,
"does not fulfill its obligation to reasonably accommodate a religious belief when
it is confronted with two religious objections and offers an accommodation which
completely ignores one." Id. See also EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1576 (7th Cir. 1997) (when Jewish employees asked for the day off on Yom
Kippur, the employer's offer to give them a different day off "cannot be
considered reasonable . . . because it does not eliminate the conflict between the
employment requirement and the religious practice"); EEOC v. Universal
Manufacturing Corp., 914 F.2d 71, 73 (5th Cir. 1990) (when World Church of
God adherent requested seven days of unpaid leave to attend the Feast of
Tabernacles, the employer's offers of either five days off or seven days off if she
worked one shift during that time were not reasonable; when an employee has two
religious duties, accommodating one and ignoring the other "would be patently
unreasonable"); EEOC v. AFSCME, 937 F. Supp. 166, 168 (N.D.N.Y. 1996)
(where union member objects both to the union's lobbying activities for abortion
and against capital punishment and to supporting an organization that advances
those positions, union's proposal that he pay his shop fee reduced by a small
amount proportional to the cost of the lobbying activities is not a reasonable
accommodation because it "would not address [plaintiff's] objection to supporting
the organization itself"); compare Cosme, 287 F.3d at 159-60 (holding that the
defendant's offers to accommodate plaintiff's religious beliefs constituted
reasonable accommodations because they eliminated the conflict between his work
schedule and his religious duty to refrain from working on the Sabbath).
     Home Depot may argue that the Cosme definition of "reasonable
accommodation" does not govern here because before Cosme was decided, this
Court defined "reasonable accommodation" less strictly in Knight v. Connecticut
Department of Public Health, 275 F.3d 156 (2d Cir. 2001). Knight was primarily a
case about free-speech rights under the First Amendment. The plaintiffs, a nurse
consultant and a sign-language interpreter working for state agencies, were born-
again Christians who sometimes "felt called . . . to discuss their religious beliefs
with clients while performing their duties," and did so in a manner that upset the
clients. Id. at 160-63. Their employers accordingly forbade the plaintiffs from
discussing their religious beliefs with their clients, although they allowed the
plaintiffs to discuss those beliefs with their co-workers at their workplaces. The
plaintiffs' principal claim was that their state employers were violating their free-
speech rights under the First Amendment. The court of appeals affirmed the
district court's dismissal of that claim, holding that, under Pickering v. Board of
Education, 391 U.S. 563 (1968), the plaintiffs' free-speech rights were outweighed
by their employers' interest in "providing effective and efficient public services,"
and by their employers' constitutional duty to avoid "appear[ing] to take a position
on questions of religious belief." Knight, 275 F.3d at 164-65 (punctuation and
citations omitted).
     The Knight panel then addressed the plaintiffs' claims under Title VII that
their state employers had failed to provide reasonable accommodations for their
religious beliefs. In affirming the district court's judgment dismissing the
plaintiffs' Title VII claims, Knight's primary holding was that the plaintiffs had
each failed to make out a prima facie case  of religious discrimination, because
neither plaintiff had told her employer that she believed she had a religious duty to
share her religious beliefs with her clients. Id. at 167-68. In the alternative, the
panel ruled that, even assuming that the plaintiffs had established prima facie
cases, "the accommodation they now seek is not reasonable" because it would
cause their employers undue hardship: it would "jeopardize the state's ability to
provide services in a religion-neutral matter." Id. at 168. Third, the court declared
that "the state reasonably accommodated plaintiffs' beliefs [because t]he
restrictions on their religious speech applied only while working with clients on
state business." Id. 
     The last-quoted statement should be considered dictum rather than a binding
alternative holding because the Knight panel did not parse the specific nature of
the plaintiffs' professed need to evangelize and what might fulfill that need. The
panel's statement that the state defendant reasonably accommodated the plaintiffs'
beliefs should not be read to implicitly adopt a definition of reasonable
accommodation that departs from the clear statements in Cosme and Ansonia that
an employer's suggestion is not a reasonable accommodation unless it eliminates
the conflicts between the employee's work requirements and his religious
practices. Indeed, the Knight panel did not make any general statement about the
nature of reasonable accommodation, nor did it cite any authority on the issue. 
     Home Depot also suggested that Baker could fulfill his religious duties if he
became a part-time employee. Home Depot may argue that this Court should
affirm the district court on the alternative ground that this suggestion constituted a
reasonable accommodation, but it was not a reasonable accommodation either.
Baker testified that Vorndran threatened to schedule him for far fewer than 40
hours a week if he took this option, and that she told Baker, who had a young
daughter and expected another baby soon, that she realized that he "can't afford to
do that." R-23, X-A: 86. Moreover, in their meeting the previous week Vorndran
had stated, "You will work Sundays or you will not work here." Id. at 77-78.
     This suggestion that Baker become a part-time employee was not a
reasonable accommodation, because it would have imposed a significant financial
burden on Baker. See Cosme, 287 F.3d at 160 ("an accommodation might be
unreasonable if it imposes a significant work-related burden on the employee
without justification"); Cooper, 15 F.3d at 1379 (employer's suggestion that
plaintiff use all her accrued vacation time to avoid working on her Sabbath was
not a reasonable accommodation because it deprived her of a benefit enjoyed by
all her co-workers).
                                

                           CONCLUSION

     For the reasons stated above, the Commission and the Department urge this
Court to reverse the district court's order and remand this case for further
proceedings under the appropriate legal standards.

Respectfully submitted,

ERIC S. DREIBAND
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel


____________________
PAUL D. RAMSHAW
Attorney

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, NW, Room 7040
Washington, DC  20507
202-663-4737


_____________________
BRADLEY J. SCHLOZMAN
Acting Assistant Attorney General

DAVID K. FLYNN
ERIC W. TREENE
DAVID WHITE
Attorneys

U.S. DEPARTMENT OF JUSTICE
Civil Rights Division
950 Pennsylvania Ave., NW
Room 5531
Washington, DC 20530
202-616-9405


                   CERTIFICATE OF COMPLIANCE

     In accordance with Federal Rule of Appellate Procedure 32(a)(7)(C), I
certify that this brief was prepared using Times New Roman font, 14 point, and
contains 3,191 words from the Statement of Interest through the Conclusion, as
determined by the Corel WordPerfect 9 word-counting program.



 Paul D. Ramshaw


                             
                                
                     CERTIFICATE OF SERVICE
                                
     I hereby certify that two copies of the foregoing brief were served by
mailing them on this date first class, postage prepaid, to the following party and
counsel:
                              
                              Debra Morway, Esq.
                              Morgan, Lewis & Bockius LLP
                              101 Park Avenue
                              New York, NY 10178
                              
                              Bradley Baker
                              P.O. Box 114
                              Fillmore, NY 14735
                              
                              
                              
                              Paul D. Ramshaw
                              
                              Equal Employment 
                                Opportunity Commission
                              1801 L Street, N.W., Room 7018
                              Washington, DC  20507
                              (202) 663-4737

July 8, 2005

*******************************
<NOTES>

<1> Vorndran claims she also suggested that Baker try to find a co-worker to swap
shifts with, but Baker did not recall her making that suggestion. R-24:  13; R-23,
X-A: 87-88. Vorndran further testified that Baker was disrespectful during this 
meeting, and that she advised him that his failure to report to work on his 
scheduled days would constitute a flagrant disrespect for managerial policy. 
R-24:  14. Baker did not recall her saying this either. R-23, X-A: 88.