UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60175

SANDRA M. BRUFF,

Plaintiff - Appellee-Cross-Appellent,

versus

NORTH MISSISSIPPI HEALTH SERVICES,

INC.; NORTH MISSISSIPPI MEDICAL

CENTER, INC.,

Defendants - Appellants-Cross-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

March 28, 2001

Before POLITZ, SMITH, and PARKER, Circuit Judges.

POLITZ, Circuit Judge:

North Mississippi Health Services, Inc. and North Mississippi Medical Center,

Inc. ap peal the trial court’s denial of judgment as a matter of law, contending that

whether accommodating religious beliefs constitutes an undue hardship, and whether

their accommodation was reasonable, are questions of law, not questions of fact for the1 By consent, this case was tried before the Magistrate Judge.

2 North Mississippi Health Services, Inc. is the parent corporation of North

Mississippi Medical Center.

2 jury. They also appeal the jury’s verdict which awards Sandra Bruff back pay and

com pensatory and punitive damages in her discrimination claim under 42 U.S.C. §

2000e, et seq. (“Title VII”). Bruff cross appeals the dismissal of her state law claims,

specifically contending that requiring her to counsel homosexuals, and those living in

extramarital relationships, about those relationships violated Mississippi sodomy laws,

thus making her termination wrongful under a public policy exception to her employedat-will status. She also appeals the denial of her motion for either reinstatement to her

former position or for front pay in lieu thereof. A thorough review of the record

persuades that we should reverse the judgment on the Title VII claims and affirm the

dismissal of Bruff’s state law claims. 1

BACKGROUND

After graduating from the Ref ormed Theological Seminary in Jackson,

Mississippi, with a master’s degree in marriage and family counseling, Bruff was hired

as a counselor by N orth Mississippi Medical Center, Inc., 2 first as an adolescent

counselor, and eventually as a counselor in its Employee Assistance Program (“EAP”).

The Medical Center, a non-profit hospital in Tupelo, Mississippi, established the EAP3 In order to maintain the confidentiality of the client company and its employees

seeking counseling, Jane Doe was never specifically ident ified during the trial

proceedings.

4 The Medical Center introduced evidence that professional counseling standards

of practice prohibit counselors from discriminating based upon sexual preferences,

while Bruff introduced evidence that the counseling rules of ethics require a counselor

to disclose to the patient any areas that the counselor is not qualified or capable of

counseling on, and that her actions with Doe were in conformance with those rules.

We take no position on what professional standards or ethics codes might require in the

field of counseling. Our inquiry here is strictly to what extent Title VII requires the

Medical Center to accommodate Bruff’s religious beliefs.

3 to provide counseling to the employees of various businesses in the region.

Bruff was one of three EAP counselors, one of whom also acted as the

program’s supervisor. Counseling sessions were held during and after regular business

hours in Tupelo and Oxford, Mississippi. Typically, only one counselor would travel

to a given location on each occasion.

Early in 1996 Bruff counseled a woman identified only as Jane Doe. 3 Several

months later Doe returned for further counseling. At that time she informed Bruff that

she was a homosexual and she asked for help in improving her re lationship with her

female partner. Bruff declined to counsel Doe on that subject, advising that

homosexual behavior conflicted with her religious beliefs, but offered to continue

counseling Doe on other matters. 4 Another counseling session was scheduled but Doe

did not appear. Instead, she complained to her employer about Bruff’s actions and her4

employer in turn complained to the Medical Center.

T he supervisory counselor informed Bruff a complaint had been lodged and

arranged a meeting to explore the matter. In that meeting Bruff confirmed that she had

declined to counsel Doe on improving her homosexual relationship because doing so

would conflict with her religious beliefs. Bruff was then directed, per company policy,

to put in writing exactly what aspects of her counseling responsibilities she wanted to

be excused from. Bruff wrote a letter asking that she “be excused from . . . actively

helping people involved in the homosexual lifestyle to have a better relationship with

their homosexual partners. This would also include helping persons who have a sexual

relationship outside of marriage have a better sexual relationship.” She added that her

problem was not with counseling the person per se

, but only with providing assistance

in improving the homosexual or extra-marital relationship.

In response to this letter Medical Center manage ment met several times to

determine if Bruff’s request could be accommodated by shifting responsibilities among

the three EAP counselors. Eventually it was determined such an accommodation was

not feasible. Management then gave her a letter denying her request, stating

“Individuals being seen in accordance wit h all of our EAP contracts obligates us to

treat a wide variety of psychiatric disturbances and clinical issues. Our EAP contracts

with our customers do not exclude certain categories or issues for i ndividuals with5

certain types of issues. You also are not able to determine specific patient care issues

in advance. Your request could create an uneven distribution of patient work load.”

The letter also raised a concern that her request to continue treating an individual on

some issues while declining to treat others might violate established ethical provisions,

and they suggested that she contact the Mississippi Board of Examiners for Licensed

Professional Counselors. After the meeting Bruff was relieved of her counseling

responsibilities and placed on leave without pay.

Bruff appealed this decision to a vice president of the Medical Center who asked

whether there would be any other situations when Bruff would not want to counsel a

p erson. Bruff responded that she would not be willing to counsel anyone on any

subject that went against her religion. When the possibility of transferring from the

EAP to a section specifically performing pastoral or Christian counseling was discussed

she demurred, opining that the head of that section held religious views that were more

liberal than hers, and that he likely would not tolerate her conservative perspective.

Based upon Bruff’s letter and their discussion, the Medical Center’s vice

president wrote Bruff affirming the decision to deny her request to c ounsel only on

topics that did not conflict with her religion. In his letter the vice president referenced

the small size of the EAP staff; the travel and e xtended hours the counselors must

work; the inability to determine beforehand when a trait or topic might arise that would5 The list the employment counselor showed Bruff included several positions

outside of the counseling field that would have allowed her to remain in the hospital

system, thus retaining her benefits and the ability to apply, on a preferential basis, for

a transfer to another counselor position when it became availab le. Those non-counselor

positions, however, generally paid between $7 and $8 an hour, whereas she had been

6 require referring the employee to another counselor, thus requiring either multiple

counselors to travel, or scheduling additional counseling sessions at another time; and

the additional sessions that introducing a new counselor might require to build the trust

relationship necessary to be effective. He underscored that the logistics of

accommodating her request would cause an undue hardship upon the Center, its clients,

and the other EAP counselors.

After affirming the denial of Bruff’s request, the vice president offered her three

options: (1) reconsider her request for accommodation; (2) request a transfer to another

position or department in which conflict of care issues were less likely to occur; or (3)

resign her position. If she decided to request a transfer, she would be given 30 days

to secure another position before she would be terminated.

The Medical Center contacted its in-house employment counselor and asked her

to assist Bruff in locating another position within the hospital system. The counselor

showed Bruff a list of available openings, and offered her the opportunity to take two

tests designed to manifest her aptitudes and interests. Bruff declined to take the tests

or to apply for any non-counselor position. 5making over $16 an hour as an EAP counselor. Bruff testified she declined the aptitude

and interests tests because she already knew what her interests and skills were, i.e.

, counseling.

6 The successful applicant had a Ph.D. in a relevant field, as well as marketing

experience. Bruff had neither.

7 Bruff testified that the employment counselor promised to call her when a

counseling position became availa ble. She stated that she becam e aware of the

additional opening but did not apply because she felt that if there was any chance of her

getting the p osition the employment counselor would have contacted her. The

counselor testified that she told all employees seeking assistance that she was there as

a resource, but the responsibility to search was theirs. She posted updated job opening

lists three times a week but did not call anyone to advise them of openings, due to the

large number of employees in the system.

7 On the day she met with the employment counselor Bruff applied for the position

of Psychiatric Assessment Counselor in the Behavioral Health Department, the only

counselor opening available a t that time. Medical Center policy called for giving

current employees 48 hours notice of position vacancies before posting those vacancies

with the public, and g uaranteeing an interview to current employees who met the

minimum position requirements and who applied within that 48 hours. The Psychiatric

Assessment Counselor position, however, had already been posted with the public at

that p oint. The record reflects that Bruff’s application was considered but another

applicant with superior credentials was selected. 6

While this application was pending, another counselor position becam e available;

however, Bruff chose not to apply. 7 The 30 day continued employment period lapsed8

and Bruff’s employment was terminated. The head of the Behavioral Health

Department, when placing the notice of termination in Bruff’s file, noted that he would

not consider rehiring her for the EAP.

Bruff then fi led a complaint with the Equal Employment Opportunity

Commission. The EEOC concluded its investigation without action, notifying Bruff

that she had 90 days to file suit if she so desired. The instant action followed.

The matter was tried to a jury, which found that the Medical Ce n ter had

discriminated against Bru ff because of her religious beliefs, that it had not made a

reasonable accommodation for those beliefs, and that it had acted with malice o r

reckless indifference. The jury awarded her $32,738.44 in back pay; $326,000.00 in

compens atory damages; and $1,700,000.00 in punitive damages. The trial judge,

acting under 42 U.S.C. § 1981a(b)(3)(D), reduced the total compensatory and punitive

damages to the statutory maximum of $300,00 0.00. Back pay is not included in the

statutory cap. Bruff’s state law claims, which would not have been subject to a similar

cap, previously had been dismissed on a motion for directed verdict.

The parties filed several post-trial motions, all of which were d enied. The

Medical Center and its parent appeal both the trial court’s denial of its motion for

judgment as a matter of la w, and the jury’s adverse verdict. Bruff cross-appeals the

dismissal of her state law claims, and the denial of her motion for reinstateme nt, or8 W ardlaw v . Inland Container Corporation , 76 F.3d 1372, 1375 (5th Cir.

1996)(quoting Boeing v. Shipman , 411 F.2d 365, 374 (5th Cir. 1969)(en banc)).

9 alternatively, front pay in lieu thereof.

ANALYSIS

We first look at th e denial of the Medical Center’s motion for judgment as a

matter of law, reviewing the denial using the same test used by the trial court:

The Court should consider all of the evidence – not just that evidence

which supports the no n-mover’s case – but in the light and with all

reasonable inferences most favorable to the party opposed to the motion.

If the facts and inferences point so strongly and overwhelmingly in favor

of one party that the Court believes that reasonable men could not arrive

at a contrary verdict, granting of the motion is proper. On the other hand,

if there is substantial evidence opposed to the motion, that is, evidence of

such quality and weight that reasonable men in the exercise of impartial

judgment might reach different conclusions, the motion should be denied

. . . . 8

Appellants do not contest that Bruff established her prima facie case of religious9 A prima facie case of religious discrimination is established when an employee

can show that: (1) he or she had a bona fide religious belief that conflicted with an

employment requirement; (2) the employer was informed of that belief; and (3) the

employee was discharged for failing to comply with the conflicting empl oyment

requirement. W eber v. Roadway Express

, 199 F.3d 270 (5th Cir. 2000). The sincerity

of Bruff’s beliefs has never been questioned.

10 42 U.S.C. § 2000e(j).

10 discrim ination under Title VII; 9 therefore, the burden shifts to them to show why

accommodating her religious beliefs as requested, i.e.

, allowing her to remain an EAP

counselor while on ly counseling on subjects that do not conflict with her religion,

would cause them an undue hardship, or that they have offered an alternative

reasonable accommodation to resolve the conflict. 10 Based upon the facts of this case

we deem it appropriate to examine each in turn.

Accommodation can take place in two fundamental ways: (1) an employee can

be accommodated in his or her current position by changing the working conditions,

or (2) the employer can offer to let the employee transfer to another reasonably

comparable position where conflicts are less likely to arise.

I Retention as an EAP counselor

The Medical Center contends that retaining Bruff in her position as an EAP

counselor would cause an undue hardship. The Supreme Court, in T rans World11 432 U.S. 63 (1997).

12 Bruff does not contend, nor does the record suggest, that under its counseling

contracts the Medical Center could merely decline t o counsel individuals on certain

subjects. Nor would hiring additional counselors be reasonable, given the obvious

additional cost.

11 Airlines v. Hardison

, 11 opined that an undue hardship exists, as a matter of law, when

an employer incurs anything more than a de minimis cost to reasonably accommodate

an employee’s religious beliefs.

As earlier noted, t he evidence established that the Medical Center employed

three counselors in its EAP program, one of whom handled supervisory duties in

addition to her counseling responsibilities. Thus, any request by Bruff to refer all

subjects desiring to be counseled on something that she felt conflicted with her religious

beliefs meant, necessarily, that one of the remaining two counselors must assume that

responsibility. 12 This might be accomplished by the other counselors either voluntarily

assuming a disproportionate workload, or trading counseling assignments with Bruff,

on a quid pro quo basis, if available.

Voluntarily accommodating t he preferences of other counselors was accepted

practice at the EAP, and the record reflect s that one of the other EAP counselors

disliked counseling young children. She requested that she not be given such

assignments, a nd Bruff and the other counselor agreed to assume that responsibility13 S ee Weber

, 199 F.3d at 2 75 (finding secular, flexible exceptions to be d e

minimis , whereas inflexible religious exceptions affecting other employees are not).

12 whenever possible; however, when neither of them could accommodate her preference

the original counselor would counsel the child.

Bruff does not suggest that her request for accommodation was similarly flexible;

ins tead, she contends that under Title VII the Medical Center must excuse her from

counseling on all subjects of c o ncern at all times. Furthermore, unlike traditional

requests for religious accommodation which merely seek to rearrange an employee’s

schedul e, Bruff determined that she would not perform some aspects of the position

itself , and her testimony makes it abundantly clear that she was aware of that before

applying for the position. Bruff testified that when she initially applied to be an EAP

counselor she assumed she would have to counsel homosexuals, but she also assumed

she could refer suc h individuals when they sought counseling on their relationships.

Nothing in the record reflects that she raised this issue with her interviewer, or explored

how any such conflicts with her religious beliefs could, in fact, be accommodated.

Instead, she apparently assumed she would only have to perform those aspects of the

position she found acceptable. Title VII does not require an employer to accommodate

such an inflexible position. 13

Appellants contend, and the record supports, that given the size of the EAP staff,14 W eber

, 199 F.3d at 274 (“ The mere possibility of an adverse impact on coworkers

. . . is sufficient to constitute an undue hardsh ip.”). See a lso Brener v.

Diagnostic Center Hospital , 671 F.2d 141 (5th Cir. 1982)(same).

15 There was also testimony that substituting counselors would have a potential

negative impact upon those being counseled. While adding weight to our decision, we

feel the logistical and economic impact on the Medical Center and the other counselors

alone establishes, as a matter of law, that accommodating Bruff would result in more

than de minimis cost.

13 the area covered by the program and the travel involved, and the nature of

psychological counseling incorporating trust r elationships developed over time, any

accommodation of Bruff in the EAP counselor position would inv olve more than d e

minimis cost to the Medical Center. Requiring one or both counselors to assume a

disproportionate workload, or to travel involuntarily with Bruff to sessions to be

available in case a problematic subject area came up, is an undue hardship as a matter

of law. 14 Requiring the Center to schedule multiple counselors for sessions, or

additional counseling sessions to cover area s Bruff declined to address, would also

clearly involve more than de minimis cost. 15

T he trial court, in denying the Medical Center’s motion for a directed verdict,

acknowledged these as possible hardships to the Medical Center, but found them to be

speculative and theoretical. We do not agree. Title VII does not require an employer

to actually incur accommodation costs befor e asserting that they are m ore than d e16 See Weber , 199 F.3d at 274-5 (proposed accommodations can be evaluated as

to cost and impact without waiting for them to be implemented, or even waiting for a

conflict to occur). The instant action was tried before W eber ; thus, the trial judge did

not have that opinion for guidance.

17 A nsonia Board of Education v. Philbrook

, 479 U.S. 60, 68 (1986)(“By its very

terms the statute direct s that any reasonable accommodation by the employer is

sufficient to meet its accommodation obligation.”). See also Equal Employment

Opportunity Commission v. Universal Manufacturing Corp.

, 914 F.2d 71, 73 (5th Cir.

1990)(“Offered an accommodation [that is reasonable], the employee cannot insist

upon a specific or more benefi cial one.”); a nd Eversley v. MBank Dallas

, 843 F.2d

172, 176 (5th Cir. 1988)(same).

14 minimis

. 16 Further, this situation did not arise from speculation, but from actual

experience with Jane Doe and the subsequent concern raised by her employer that other

homosexual employees might decline to seek such counseling as a result.

As evidenced by the letter to Bruff initially denying her request, the counseling

contracts between the Medical Center and its client companies do not limit the scope

of the areas subject to counseling. Considering that Bruff’s expressed requirement to

be excused from counselin g on any subjects that might conflict with her religious

beliefs essentially would give her unlimited authority to determine what those conflicts

are, and when she must be accommodated, more conflicts would appear to be givens.

II Transfer to another counselor position

Title VII does not restrict an employer to only those means of accommodation

that are preferred by the employee. 17 Once the Medical Center establishes that it18 99 F.3d 678 (5th Cir. 1996).

19 Id. at 681.

20 C ompare e.g.

, 42 U.S.C. § 12111(10)(A)(“[ Under the ADA] the term ‘undue

hardship’ means an action requiring significant difficulty or expense[.]”); w it h

Hardison

, 432 U.S. at 84 (under Title VII anything more than de minimis expense is

an undue hardship).

15 offered Bruff a reasonable accommodatio n, even if that alternative is not her

preference, they have, as a matter of law, satisfied their obligation under Title VII.

The Medical Center contends that its offer to give Bruf f 30 days, and the

assistance of its in-house employment counselor, to find another position at the Center

where the likelihood of encountering further conflicts with her religious beliefs would

be reduced fulfilled its obligations to offer her a reasonable accommodation. We agree.

In her brief Bruff erroneously cites Riel v. Electronic Data Systems, Inc. 1 8 as

authority for her contention that “by definition, giving one the same opportunities as are

available to all other persons is not an ‘accommodation.’” R iel

, which is an ADA case,

noted that most discrimination statutes preclude treating persons differently, whereas

the ADA, by requiring reasonable accommodation of a person’s disabi lities, “shifts

away from similar treatment to different treatment

. . . .” 19 In addition to the

d istinctions between the definitions of “reasonable accommodation” and “undue

hardship” found in the ADA and those developed by the cases under Title VII, 20 Bruff21 On September 5, 1996, just weeks before the events at issue here took place, the

decision in Howard v. North Mississippi Medical Center

, 939 F. Supp. 505 (N.D. Miss.

1996), was f

iled. H oward was an ADA case involving the Medical Center and a

p laintiff represented by the same counsel representing Bruff. In that opinion Chief

Judge Senter found that the 30 day transfer po licy utilized by the Medical Center,

including the assistance of the in-house employ ment counselor, was a reasonable

accommodation under the ADA. Id. at 510. While that opinion does not bind us here,

we beli eve the Medical Center was certainly reasonable in believing that, based on

Howard

, it was complying with the requirements of Title VII by offering Bruff the same

opportunity it afforded Howard under the ADA.

22 It is axiomatic that preferential treatment involves discriminating against one in

favor of another, which, in the context of religion, is exactly the conduct proscribed by

Title VII. An employer cannot give preference to an employee because of his or her

religion any more than it can discriminate against that employee for the same reason.

16 confuses different treatment with preferential treatment. Here, it was giving Bruff the

opportunity to transfer once she stat ed she would not perform all aspects of her job

description, instead of simply terminating her as an at-will employee refusing to fulfill

h er job responsibilities, that served to treat her differently from other employees

because her actions were protected by Title VII.

When the Medical Center gave Bruff 30 days to find an other position, it also

alerted its in-house employment counse lor to the situation and directed that Bruff be

given assistance in that effort. 21 The record reflects that Bruff was advised of, and

applied for, another counselor position. Although she was not successful, the Medical

Center was not obligated to give Bruff preference over others with superior credentials

when filling the Psychiatric Assessment Counselor position. 22 Bruff was also advisedSee e.g.

, Hardison

, 432 U.S. at 81(“It wou ld be anomalous to conclude that by

‘reasonable accommodation’ Congress meant that an employer must deny [the rights]

of some employees 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.”).

23 As previously noted, these non-counselor positions would have required Bruff

to take a significant reduction in salary. This alone, however, does not m ake the

accommodation unreasonable. See e.g.

, Hardison

, 479 U.S. at 373 (requiring employee

to take unpaid leave to observe religious practices was reasonable); and Eversley

, 843

F.2d at 176 (“[S]imply because the proposed accommodation would involve some cost

to the employee does not make it unreasonable.”)(citing Hardison ).

17 of other available positions, which she declined to apply for, as well as the availability

of tests that might illuminate whether positions she might not otherwise consider might

be of interest. 23 She declined to even consider a transfer to the pastoral counseling

department because she speculated there might be a personal conflict with its director.

It is not clear from the record that there was, in fact, an opening available in the

pastoral counseling department when the option was proffered. Of importance here,

however, is the fact that Bruff refused to even consider that option before the existence

of a vacancy could be explored. Similarly, her testimony that she declined to apply for

the second counselor position when sh e learned of that opening, because she didn’t

think the Medical Center would seriously consid er her, was based upon pure

speculation. An employee has a duty to cooperate in achieving accommodation of his24 S ee

, e.g.

, Brener

, 671 F.2d at 145-46 (“The cases confirm what the statute’s use

of the term “reasonable” suggests: bilateral cooperation is appropriate in the search for

an acceptable reconciliation of the needs of the employee’s religion and the exigencies

of the employer’s bu siness.”). Because there was som e conflicting testim ony as to

whether Bruff or the employment counselor was responsible for ensuring that Bruff was

made aware of all vacancies that came open after their initial meeting, and because in

this analysis we must consider all evidence in the light most favorable to Bruff, we do

not find that her subsequent failure to check the updated vacancy lists displayed a lack

of cooperation on her part.

25 U niversal Manufacturing

, 914 F.2d at 73 (“Ordinarily, questions of

reasonableness are best left to the factfinder.”).

18 or her religious beliefs, and must be flexible in achieving that end. 24 Bruff displayed

almost no such cooperation or flexibility.

Bruff contends that, in any event, whether the Medical Center’s transfer offer

was reasonable or not is a jury question, which the trial judge and this court should not

disturb. Ordinarily, that might be the case. 2 5 Here, however, the facts and inferences

point so strongly and overwhelmingly in favor of the Medical Center that reasonable

men could not arrive at a contrary verdict, and denial of the motion for judgment as a

matter of law was error.

III Bruff’s State Law Claims

Bruff contends that by asking her to counsel clients on improving homosexual

or extramarital relationships, Appellants were asking her to violate Mississippi state

sodomy laws which make certain sexual acts unlawful. Nothing in the record suggests26 Because of our rulings here, we need not reach the remaining issues on appeal.

19 that she, or any other counselor, was ever asked to counsel anyone on the performance

of sexual acts, nor that she ever rai sed any such concern with anyone. We find that

argument specious, and we agree with the trial court that this is stric tly a Title VII

religious discrimination case. Accordingly, we affirm the trial court’s dismissal of

Bruff’s state law claims.

CONCLUSION

The evidence, considered in the light most favorable to Bruff, clearly established

that requiring the Medical Center to acco mmodate her while retaining her in the

position of EAP counselor would involve more than de minimis cost and therefore is,

as a matter of law, an undue hardship. Further, the Medical Center’s offer to give Bruff

30 days to transfer to another position where conflict of care issues were less likely to

arise was beyond peradventure a reasonable accommodation. Accordingly, the trial

court erred in denying Appellants’ Motion for Judgment as a Matter of Law.

For those reasons, the judgment of the trial court on Bruff’s state law claims is

AFFIRMED. The judgment on her Title VII claims is REVERSED, and judgment is

RENDERED herein for Defendants/Appellants dismissing Bruff’s demands with

prejudice. 2620