thank you may please the court julie and some behalf of the e e o c in this case seventh day adventist nurse emily sure and are all requested to be excused from working the friday night shift at the defendant's hospital because it conflicted with her sabbath which disallows secular work from sundown friday to sundown saturday north memorial went through her job offer even after she repeatedly said she would accept the position with or with it without accommodation this court should reverse the district court's holding that her request for religious accommodation is not protected activity under title seven's anti rich hellacious provision treating requests for comment ation as protected opposition to unlawful behavior is supported by the text of the statute the supreme court's broad interpretation of the word oppose consistent with the anti retaliation provisions objective pitch to protect workers who are certain title seven rights and consistent with title sevens larger purpose to secure workplaces supriya discrimination title seven makes it unlawful for an employer to discriminate against an employer applicant because she has opposed a practice made unlawful by title seven or that she reasonably believes is unlawful sure and doris request for comment ation necessarily conveyed her opposition to north memorial's requirement that she work on her sabbath in violation of her religious beliefs when north memorial could accommodate her the unlawful activity she was opposing was the denial of a very little combination the supreme court in crawford explained that the term oppose must be given its ordinary meaning and the court attributed several dictionary definitions to the term including to be hostile or adverse as an opinion the crawford court said oppose going to be on active consistent behavior in ordinary discourse where we would naturally use the term the word to speak of someone who taken no action at all to advance a position beyond disclosing at the court held in an employee to answer questions about harassers inappropriate behavior during an internal investigation was protected by the opposition cause even though she did not overtly communicate that she thought the harassment she reported was illegal here sure and ours requests for religious accommodation similarly can be read as resistant or antagonistic to working the friday night shift in conflict with her sabbath there are many correct so when she when the she requested to have friday it wasn't a matter whether she said she would do the job with or without accommodation she said repeatedly that she would take make it worked she would come in on her shift and withdrew her request for a combination but then she was punished for making the request in the first place that's the problem here she was fully qualified to do the job and she had she testified that she so she is protected in the same regard and the retaliation statute covers applicants i just don't understand if you live for a job that requires work on yours and you say well i rule that potentially could be an employment discriminate could be discriminatory as applied to her short of under hardship but this is not a failure accommodate claim she was drew her commendation request what happened is she was identified a conflict with her religious beliefs with a work requirement and then she it fits she posed a practice she reasonably believed was unlawful because she thought she was entitled to a accommodation just because the employer could nonna combinator doesn't mean she wasn't protected by this other provision of title seven so just like in the case and all is your best job i don't know that there is a job applicant he is but the court this is very much like the case in all of this vs hearthstone homes where an employee asked for an exception to a job requirement to attend these mind body energy sessions and he said conflicted with his religion as a christian and he was ultimately fired later when he did not go to the sessions just like those mind body energy sessions the employer was perfect further it's almost exactly the same the court this court affirmed the jury verdict saying that he had offered enough enough evidence of retaliation because he had identified a conflict with his religious beliefs and there was all kinds of all kinds of  the collective bargaining agreement with the job duties that are required she says well i would drop all make it work right and she said if i have to come in for an emergency oh well she has one belief of what she meant by saying that the employer says they believe something else where i'm a little bit fuzzier on is when did she communicate ploy or this other theory that she arrived at that really i can solve my sabbath problem by just contributing the money or some part of the money to the church when was that communicated was she actually testified to that in her deposition after the  did but they don't want her mind readers so we really can't consider that phadrig your honor but in her e mail correspondence i don't know if you read that in the record of november twentieth when she was told that the job offer is being withdrawn she wrote a lengthy email and forward of four to five times said that she will take it without a combination many times and she testified that she made no repeatedly that she was willing to take the job with or without accommodation and that she really really wanted the job but they testified that they are individuals just didn't believe that she was really going to appear on friday night but if they this is also a summary judgment record so the facts should be taken in the light most favorable to the commission and there is substantial evidence that she made known repeatedly that she would take the job with or without accommodation and that she was also rated a very very highly in her interview considered a great opera can't first so for someone that they actually wanted to hire it's an expo the whole why they wouldn't have given her the benefit of the doubt assigned her to her schedule and then if there was a problem with her attendance then they would have been certainly within their rights to fire her at that point but to do it draw her job offer that after she withdrew her request for accommodation is the problem here she was asserting a rate that is specified in title seven accommodation even as an applicant she is protected by that part of the statute and basically when she said that all find someone to cover for me or an emergency all come in and that should be ignored when she later says listen i withdraw my request for a new company i don't know if you are doing nor i your honor but it seems like there are a lot of miscommunications in this whole hiring process she she was in her mind she was saying it's an  emergency in my situation like it's i will i will go in and work on my sabbath because i really need this job and i want this job so for her she was planning to go and if she couldn't find someone to switch with her they understood that to mean that if someone dying and she's absolutely needed then she'll be there but again and the other so it's more of a she tried to clarify in these e mails correspondence that she was going to work without the accommodation yet they still with you the job offer from her so that was so our case is that she was asserting her right it's not a failure to accommodate claims but that she was still punished between the first statements and the letter and you said we're just not sure well this is a that they would be at they could certainly tell a jury that but these are factual issues about what actually  happened and here the the district court only decided this case on this legal issue on whether what she heard clear requests for an exception to this work requirement because of religious reasons qualified as protected opposition that's why this case should be looked at under the the supreme court's case in crawford which did not work quite a or an overt statement that i believe i am but my rights are being violated there the court there said showed that it was implicit in the in the plaintiff there who was reporting on harassment that may or may not have risen to an illegal violation that in that case she didn't just like sure and are i didn't specifically say you can't do that you're violating my rights but she by identifying a conflict with her religious beliefs showed that she was opposing having to work on her sabbath when the hospital could potentially accommodate her so again it's should be looked well that's again another factual it factual dispute they didn't make any real attempt to find her another job at the hospital they really believe that there was no job there open to her because of the collective bargaining agreement or potential because they just didn't want to deal with a seven day adventists that might need and a combination so again that's all that would have to be developed in and go to a jury on what they were actually well that she wasn't ever it doesn't take away the fact that they went through the job that she had accepted because she requested a reasonable accommodation under the statute she is still protected and that she ended up not being offered a job of any kind moreover that the why don't have a record saying handy around here but i'm sorry about that but then renee conklin testified that had she been a current employer they would have done what they could to accommodate her so that the hospital was highly irritated which i know you are as well look in that she requested the accommodation after she knew that it included nights and weekends so they were definitely punishing or for requesting that's a combination but it's there's no reason to think that she knew about the collective bargaining agreement or knew that it would be difficult for her she testified that she did the employer was certainly are tainted they they said that repeatedly as we told you as we told you multiple times that requires a nights and weekends and she also offered to work the sunday night shift so she wasn't trying to get out of weekend work so she did offer to try to work with that and she's testified that she withdrew her up her request immediately and didn't make a bigger deal about this mic miscommunication that was going on because she didn't want to create bad blood she didn't want to be too aggressive because she really really wanted to work there so the idea that she had to do more to fall under the opposition clause is not supported by proffered or this court's decision at all as i see my time as a thank you good morning may it please the court i'm karen sham field i'm appearing today on behalf of north mar ill health along with my colleague party much ira were from the fredrickson byron law firm i think it's important to be clear about what is in the isn't at stake here this is not a case in which north memorial is accused of not providing a reasonable accommodation the e e o c has not pursued that claim nor has it pursued the claim of discrimination that  treated differently because of her religion or because of her practices the only thing that's at stake here is a retaliation claim only have to look carefully at the words of the statute to see whether or not under the facts of this case it's appropriate to infer that she engaged in opposition therefore falling within the confines of the retaliation clause so retaliation is what is is because  stake in our circuit both judge tony and now judge amanda misson have held that the language of title seven does not include a statement of the type that mr and i are made she didn't engage in protected activity because she didn't oppose the practice and have a good faith belief that that practice was illegal what the proffered we look to crawford your honor for the proposition that a person may oppose within the meaning of the retaliation clause of title seven even if that person doesn't initiate the dialogue but in crawford the communication took place after the episode had happened the individual was talking about what she experienced at work and made it clear that she thought that was wrong here the e e o c is arguing for something that calls implied opposition we think of that as sort of anticipat opposition so make a statement nothing has happened yet you don't know which way the employer is going to come down and yet if you don't get what you asked for now you can claim retaliation there's no indication whatsoever that she thought not grant that first of all that she thought north moral had to grant the accommodation and second of all that she thought that not granting it was illegal those are sort of flip sides of the same coin but she she made it very clear  that she wanted to negotiate with north korea had she thought that north morell had an obligation to grant an accommodation there would be nothing to negotiate so her continued negotiation her back and forth  multiple variations of what she would do going forward really is what led north and well to conclude they couldn't rely on her to work on last friday nights and they at that is sort of the sum and substance of the case whether the artifact disputes or not that the court might look to at the end of the day this is a case in which she cannot make up make out a prime official case of her tally and even if she does the employer had a legitimate non attorney reason for its action there is no evidence or pretext in the record that means that she prevails the issue of pretext was fully briefed before the district court it was considered there was there were questions asked related to it in the question is whether it's protected activity it is protected that to vittie only if it is opposition to an unlawful practice so she's got to have good reason to believe that the that denying the request is an unlawful practice she never tells us she thinks it's unlawful and in fact her behavior indicates just the opposite her behavior is find a way to work this out and again multiple variations of what that amount over time so she never in cages and that protected conduct simply saying i need i need an accommodation without more isn't opposition that's as if i were applying for a job and i said by the way i want to be paid on the same equal basis  counterparts i don't know if you're going to do that or not but just making that statement doesn't rise to the level of opposition even under the crawford case and certainly under the federal district court cases that have followed crawford sorry didn't  to let me talk a little bit about what mr and are also didn't do besides not asserting pursue her title seven rights she in answer to judge eriksson's question i'll tell you that she testified in her deposition that she never told north mario that she would donate the money to charity and there is absolutely no reason to require an employer to hire someone that they believe will not be reliable to provide patient care to ailing elderly patien remember that's the position she was being hired for and they were going out on a limb in some ways and hiring her into an advance to begin a program she would have a special preceptor to work with her to help her transition to hospital care hospital care was new to mr on tara in north morrow was willing to help her achieve that level of sophistication in her work but nonetheless she the you'll see would have you believe that it would be would have been better for north and well to hire her and then if she didn't show up to fire her that's certainly not required by any law that i'm familiar with and it is sort of flies in the face of common sense you had three experienced h r people who had dealt with mission sure and are over a period of time and came to the conclusion legitimately based on the information they were entitled to consider we can't rely on her she's going to she's not going to work she doesn't understand the collective bargaining agreement should understand the requirements of seniority in a hospital she doesn't understand the importance of showing up when you're in direct patient care physicians and so we just can't count on her far better in our mind to make the decision at that point in time and to continue to work with her to find a different changed multiple times during the course of the conversation if she had a belief system by which she said i will not work on friday nights and that's non negotiable that that's getting much closer to opposition but we weren't there in this case she made a statement and then started to withdraw from that statement sort of acquiesce to the notion of working on friday nights over time so north morial did in fact try to work with her didn't try to accommodate  or it didn't again there's no finding by the e e o c and they haven't pursued this claim at all that she was not reasonably accommodated the case law has been clear since about nine hundred seventy seven in the t w a case then employer doesn't have to should have a good faith belief belief and could communicate to the employer that to her employer she did just the opposite you're on a she never said i have to have this in order to work she didn't for the fact that she changed what it was she was willing to do over a period of time that's the factual basis for rejecting her as an as an applicant for employment and then again northmore a liked her they want to work with her they look for different jobs for her there is not there is no evidence in the record to suggest that that was a sham or a pretext as the e e o c argues right now there is nothing that would that would suggest that was the case north of morals and urban hospital it is used to accommodating a variety of belief systems of both in its employees and in this patient so this this again they want they want to work with they want to find something they in fact even one instance and this is in deposition waved at the minimum requirements in order to help her get a job so to the extent that they were treating her differently because of her belief system i think that would be a very very difficult burden for the e e o c to bear to prove that there was pretext involved here and remember pretext of course means but for but for her religion she they would not have withdrawn the conditional offer she would have to prove at the end of the day that north morial didn't have a legitimate business reason for with her on the offer and that it's real reason was intent to discriminate and when they continued to work with her that seems to me that flies in the face of a jury verdict that was a bolt on religious discrimination and on retaliation and there in that case mr aulus refused to participate in the mind body sessions that his employer required so clearly took a stand and didn't back down from that reasons one is just frankly the skepticism that even this court has expressed as to whether asking for a reasonable accommodation under the a is protected conduct this court's been quite skeptical of that few it has followed precedent in earlier decisions of the court but that the language of the kercher case in particular makes quite clear that this court isn't so certain that the language of the statute can be stretched to include merely making a request statute in the respect when it comes to to what is protected contact so there is discrimination and there's retaliation in both statutes but the a t a i also has an interference clause and that interference clause is what teaches us that in the broader context words can have different meaning and that is certainly the situation here so we would urge this court not to be misled by the notion of referring to the a d h as guidance in a title seven case it simply is a different statutory scheme report ruled strictly on the legal issue and we would urge this court to affirm either on that ground or on the ground that there is no reasonable jury that could find that there was pretext here so she simply can't make out the prime official case as i said earlier even if she could make out the pram the facia case we have clear evidence from deposition testimony that is unreported that the reason for the rejection of her now as an applicant was simply the fact that she couldn't be counted on to show up for shifts and these were not these are not shifts you know pulling shots of capital you know in a in the espresso bar right this is caring for critically ill people many of whom are at the end stages of their life so it was nothing that the that north for moral took lightly by any stretch and at the end of the day there is no evidence or pretext so we think there are ample grounds for this court to affirm and i will be happy to see my remaining two minutes or less  they don't the eighty eight cases have all either recognize or held that the same language and the two provisions are the same in the a t m title seven they all say that reasonable combination is protected activity without analysis but those cases all say the same provision the retaliation provision not the interference provision so while i agree that the eighty is a different statute and in some ways is is quite different the two  the language of the use that's you just the same so we and the cases that have recognized that the right to a combination are covered is cite to the retaliation statute not the interference provision  address the point that it was the anticipatory opposition it was she was opposing having to work on her sabbath when the hospital could potentially accommodate her so it was an anticipatory it was clearly fading into identifying a conflict with having to work on her sabbath in violation of her religious beliefs then on the all this point it's true all he the plaintiff and alice did say a threshold of activity or pushback that you have to have to qualify as opposition so under proffered and all as this court would be well within supported by authority to said and did in this case was protected opposition and then just look and you are asking for a case about an applicant and a religious and religious discrimination the supreme court's decision in abercrombie involved a woman who was applying to that store and had wore a headscarf that was a religious test was not are telling us but it did talk about the fact that when you have a neutral rule applied to someone who has a religious