NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 12a0800n.06 No. 11-5511 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

KI MBERL Y CRI DER, Plaintiff-Appellant,

v. U N I V ERSI TY OF TENNESSEE, K N O X V I L L E , Def endant- Appellee

.

____________________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TENNESSEE

OPI NI ON

Be fore : KEI TH, MCKEAGUE , and DON AL D, Circuit J udg es.

DONAL D, C i rc u i t J udg e. Plaintiff Kimberly Crider appea ls the district court’s g rant of Def endant University of Tenne ssee, Knoxvi lle’s (“U TK”) motion for summary j udg ement in Crider’s relig ious discrimination suit broug ht pursuant to Title VI I of the Civil Rights Act of 1964. For the following rea sons, we re verse and re mand. I

. I n May 2008, Crider was hired by UTK as a Prog rams Abroa d Coordinator in the University ’s Prog rams Abroa d Offic e (“PAO” ). Crider’s job responsibi l i t i es i ncluded attending confe renc es on behalf of t he department, t rave ling internationally on “site vi sits,” and monitoring

an eme rg ency

cell phone on a

rotating basis, including w eeke nds.No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille The emerg ency ph o n e wa s activate d in April 2008 as a means by which st udents study ing abroa d could re ach the PAO in the event of an eme rg ency . Be cause a student’s file mig ht need to be acc essed o n s u ch an occa sion, the Coordinator with monitoring duties was require d to stay in Knoxvi lle at all times while in possession of the emer g ency phone. During the time C rider was

em p l o y ed b y UTK, the PAO had three Coordinators. The Coordinators share d responsibility for

car ry ing the emer g ency cell phone on a rotating basis. This respons i b i l i ty included off-hours and

wee kends. Four day s afte r she beg an working for UTK, Crider informed Dr. Pia Wood, her supervisor, that she was a Seventh Day Adventist and t h at d u e t o h er relig ious beliefs she was not able to perf orm work rela ted tasks from sundown on Fr iday s until sundown on Saturday s. Among the tasks that Crider was unable to perf orm was moni toring the emerg ency cell phone on Fr iday nights a nd Saturday s. Dr. Wood ref

err ed Crider to Dr. Marva Rudolph, Direc tor of UTK’s Offic e of Equity and Di v er s i ty

. On May 20, 2008, Dr. Rudolph instructed Crider to put her reque st for a relig iou s

acc ommodation in writing , which she did. Dr. Rudolph then contac ted Dr. Wood and Alan Chesney , UTK’s Human Resource s Direc tor, statin g that she did not think UTK was obliga ted to

acc ommodate Crider but tha t the y would explore possible a ccommodations as a proac tive matter. Despite her conver sations with Drs. Wood and Rudolph, in J une 2008 Crider lear ned that she

was schedule d to car

ry the emer g ency phone on an upcoming Saturday

. Crider then devised her own

acc ommodation a

nd prese nted Dr. Wood with a proposed voluntary shift e x chang e schedule

. The proposed schedule reduc ed the number of total day s the other two Coordinators wer e responsible for the phone while incre asing the number of wee kends they wer e require d to ca rr y i t

. Dr. Wood - 2 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille prese nted C ri d er’ s proposal to the other two Coordinators, Noah Rost and Alisa Meador , and inquired whether they wer e will ing to exchang e shi fts to acc om m o d ate Crider. Although prior t o Crider’s hire Rost and Meador had share d full responsibility for the phone betwee n them, they told Dr. Wood that t h ey wer e unwilling to resume responsibility for the phone ever y other wee kend, indicating that it would be too bur densome since they could not trave l or “diseng ag e” f rom work. Dr. Wood decide d that she would not forc e the other two Coordinators to acc ept Crider’s schedule and met with Crider to discuss other opti ons. Dr. W ood asked Crider if she was willing to car ry the emerg ency phone on the weekends if one of the ot her Coordinators wer e out of t own, had a family crisis, or in the event of an emer g ency . Crider maintained that she would not monitor the phone on her Sabbath. Crider claims that she had other sug g estions for an acc ommodation, such 1

as h av i n g Dr. Wood or other depar tmental staff monitor the phone until a fourth coordina tor was hired or having emer g ency calls forwa rded to the campus police. UTK reje cted these ideas on the 2 g rounds that they wer e unwilling to pay staff members overtime and that campus police office rs wer e not trained to handle the matters of the P AO. As a result, UTK determined that Crider would not be able to fulfill her job duties, and on June 20, 2008, Crider was te rminated.

Crider indicates that her relig ious beliefs would have permitted her to assist in cer tain ty pes 1 of emer g encie s on the Sabbath. Howeve r, UTK claims she did not inform them of this fac t. Crider say s she did not inform them beca use they did not ask. C ri d er i nsists that during her interview Dr. Wood indicated that a position for a fourth 2 Coordinator alre ady exis ted and that she was waiting to see if they would rec eive the funding befor e it was filled. I n late summer of 2008, the depar tment rec eived approva l to hire a fourth coordina tor. - 3 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille Crider filed suit alleg ing relig ious discrimination in violation of Title VI I of the Civil Rights Act of 1964. UTK filed a mot ion for summary judgme nt on the basis that it could not rea sonably

acc ommodate Crider without incurring an undue hardship. The distri c t court g rante d UTK’s motion, and Crider

now appe als. I I

. We revie w a district court’s g rant of summary judgme nt de novo . Blackm ore v. Kalamazoo Cnty. , 390 F.3d 890, 894-95 (6th Cir. 2 0 0 4 ). Summary judgme nt is proper wher e “the pleading s,

answe rs to interrog atories, and admissions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as to any materia l fac t and the moving party is entitled to a judgme nt as a matter of law.” Nat’l Enters., Inc. v. Smith , 114 F.3d 561, 563 (6th Cir. 1997); see also Fe d.R.Civ.P

. 56(a)

. The Court views the rec ord in the light most favor able to the nonmoving party an d d raws all

rea sonable infe renc es in favor of that par

ty

. Blackm ore , 309 F.3d a t 895. Title VI I of the Civil Rights Act of 1964 makes it unlawful for an employ er “to fail or ref use t o h i re or to discharg e any individual, or otherwise to discriminate ag ainst any individual wi t h respe ct to his compensa tion, terms, conditions, or privileg es of employ ment, beca

use of such individual’s...relig ion[ .]” 42 U.S.C. § 2000e-2( a)( 1). Short of an undue hardship on the employ er’ s business, an employ er is require d to make rea sonable acc ommodations for the relig ious prac tices of its employ ees. 42 U.S.C. § 2000e(j). Once an employ er has offe red a rea sonable acc ommodation, i t has met its duty under Title VI I

. McG uire v. Gen. Motors Corp. , 956 F.2d 607, 60 9 (6 t h C i r. 1992). Howeve r, whether an acc ommodation is rea sonable is deter mined on a case -by -ca se basis and

- 4 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille is ge nera lly

a question of f

act f or a jury

. See Smith v. Pyro Mining Co. , 827 F.2d 1081, 1085 ( 6th Cir. 1987); see also EEOC v . Bosch , 169 F. App’ x 942, 944 (6th Cir. 2006). To establish a prima fac ie case of relig ious discrimination, a plaintiff must s h o w that “(1) [s] he holds a si ncer e religious belief that conflicts with an e mploy ment require ment; (2) [s] he has informed the employ er about the conflicts; and (3) [s] he was discharg ed or disciplined for failing to comply with the conflicting employ ment require ment.” Smith , 827 F.2d at 1085. Once the Plaintiff has established a prima fac ie case of discrimination, the burden then shifts to the employ er to prove that it cannot re asonably

acc ommodate the employ ee w ithout incurring undue har dship. Id. The parties do not dispute the district court’s finding that Crider established a prima fac ie

case of re ligious discrimination. The question befor e the Court is whether there is a g enuine issue of materia l fac t as to the rea sonabl eness of the acc ommodation UTK provided Crider and UTK’s ability to rea sonably

acc ommodate her

without undue hardship. A. Reasonable Ac commodation “The obliga tion to acc omm o date includes eff orts to acc ommodate those employ ees who ref use to work on particula

r day s of the wee k beca

use of their relig ious beliefs.” Id

. Reasonable

acc ommodations for r elig ious convictions may include unobjec tionable shift exchang es, see id . at 1088, or a transfe r to another position which pref era bly does not adver s el y af fe ct the employ ee. Draper v. Unites States Pipe and Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975). Whil e Title VI I place s the aff

irmative duty to rea sonably acc ommodate on the employ er, employ ees are expected to “make some eff

ort to cooper ate with an e mploy er’ s attempt at ac commodation.” Id

.

- 5 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille C ri d er asser

ts that upon lear

ning of her relig ious conflict, UTK failed to offe r her a

rea sonable acc ommodation. Crider claims to have provided UTK wi t h s ev era l options for

acc ommodation that did not require her to work on Fr iday n i gh ts or Saturday s but that UTK considere d onl y o n e of her proposed ideas for a rea sonable acc ommodation: the voluntary shift exchang e. Crider maintains that UTK’s reje ction of her proposal and its failure to sug g ests its own

acc ommodation indicates that the University did not comply with its duty to rea sonably

acc ommodate her relig ious needs. Moreove r, Crider claims that UTK frustra ted her eff orts to obtain

a rea sonable acc ommodation. Crider also arg ues that not only did UTK not promote an atmosphere wher e her ideas for a rea sonable acc ommodation would be “fa vorably reg arde d,” it “af

firmatively 3 discourag ed” he r proposa l for a voluntar y shift exchang e. I n response , UTK insi sts that it tried t o rea sonably acc ommodate her

when it aske d Crider if she could be flexibl e and ag ree to c arr y the phone on the wee kends in an emer g ency situation or when the other two coordina tors wer e out of t o wn . UTK found Crider to be inflexi ble, uncooper ative, and unwilling to strike a rea sonable compromise. Although an employ ee is obliga ted to cooper ate with an employ er’ s attempt at acc ommodation, co opera tion is not sy

nony mous with compromise, wher e such compromise would be in violation of the employ ees’ relig ious needs. Offe ring Crider few er Saturday shifts is not a rea sonable acc ommodation to relig ious beliefs which prohibit working on Saturday s. See Smith v. Pyro Mining Company , 827 F.2d 1081, 1088 (6th Cir. 1987) (holding that “whe re an employ ee sincere ly believes that working on Sunday is morally wrong

29 C.F.R. § 1605.2(d)( i) ref ers to voluntary substitut ions and “s waps” and encour ag es 3 employ ers to “pr omote an atmospher e in which suc h substitut ions are f avora bly reg arde d.” - 6 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille and that it is a sin to try to induce another to work in his stead, then an empl oy er’ s attempt at

acc ommodation that requires the employ ee to se ek his own re place ment is not reasona ble.”)

. UTK and the district c ourt imply that it is Crider who has the duty to acc ommodate UTK’s

n ee ds and that ultimately she is the one being unrea sonable. Aptly stated by the Thi rd C i rc u i t , a Saturday Sabbatar ian’s reque st for ever y Saturday off of work due to their relig ious needs is not per

se unrea sonable and “[t] o i n t er p re t T i tle VI I I in this fashion would eff ectively remove from the statute’s protec tion all employ ees who subscribe to relig ions with strict prohibitions ag ainst Sabbath labor.” Protos v. Volkswagen of America, Inc. , 797 F.2d 129, 134 (3d Cir. 1986) (disag ree ing with the Four th Circ uit’s holding in Jordan v. North Carolina N at’l Bank , 565 F.2d 72 ( 4th Cir. 1977), that demand for ever

y Saturday off “wa s so unlimit ed and absolute in scope...tha t [i t] speaks its own

unrea sonablene ss and is thus bey ond acc ommodation”). Given the fore go i n g, i t is debata ble whether UTK fulfilled its duty to rea sonably

acc ommodate Crider, and thus we turn to whether UTK is excused from this duty beca use providing

a re asonable acc ommodation would crea te an undue hardship. B. Undue H

ardship UTK insists that requiring its employ ees to work Saturday shifts ever y other wee kend would have c rea ted an undue hardship for Crider’s f

ormer c o-worke rs. As support, UTK c ites Meador ’s threa t to quit her job as a Coordinator if forc ed to car ry the emer g ency phone ever y other wee kend. Crider arg ues that her former co-w orker s’ discontent reg arding adoption of the volu n t ar y s h i ft exchang e amounts to mere “g rumbling” and is n ot enoug h to establish that UTK’s business will suffe r an undue hardship. - 7 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille T h is Court has held that “objec tions and complaints of fellow employ ees, i n an d o f themselves, do not constitute undue hardship in the conduct of an employ er’ s business,” noting that “undue hardshi p i s s o m ething g rea ter than hardship, and an employ er does not sustain his burden of proof mere ly by showing that an acc ommodation would be bothersome to administer or disruptive of the opera ting routine.” Draper , 527 F.3d at 520 (interna l qu o tation marks omitted). UTK, howeve r, asser

ts that the Supreme Court in Trans W orld Airlines, Inc. v. Hardison, et al. , 432 U.S. 63 (1977), held that an acc ommodation cause s an undue hardship wher e the employ ee’ s co-w orker s will suffer a

n imposit ion and that this holding ef fec tively overr uled our de cision in Draper

. The district court heavily relied on Hardison in deter mining that UTK would incur an undue h ar d s h i p if it wer e require d to forc e Rost and Meador to resume responsibility of car ry in g t h e

emer g ency phone ever

y other wee kend. I n rea ching this deter mination, the district court emphasized Hardison’s reje ction of the notion that an employ er may deprive one employ ee of their shift choice i n o rd er to allow another employ ee to observe their Sabbath. Hardison held that “[t] he repe ated, unequivoca l emphasis of both the lang uag e and the leg islative history of Title VI I is on eliminating discrimination in employ ment, and such discrimination is proscr ibed when it is direc ted agai nst majorities as well as minorities.” Hardison , 432 U.S. a t 81. Thus, Title VI I also protec ts Rost and Meador from discrimination on the basis of Crider’s relig ious needs. An d wh ile the issue in Hardison cente red around a seniority sy stem barg ained for under a collective barg aining ag ree ment,

- 8 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille the l anguag e in Hardison sug g ests that rea sonable accommodations are not rea sonable when they would result in unequal tre atment of e mploy ees on the basis of re ligion. Id . at 84. 4 Ultimately , Hardison hinge s on the voluntary nature of a shift exchang e: Had one of Har dison’s co-w orker s been willing to fore g o his seniority privileg es and switch shifts, there would have been no issue for the Court to decide

. As it wa s, Har dison was not able to find a volunteer to switch shifts, and thus the Court was tasked with d ec i d i n g how far TWA was require d to g o to

rea sonably acc ommodate Har dison without undue hardship. The Court found that requiring TWA to brea ch the contra ctual rig hts of its employ ees by abandoning the seniority sy stem established by a collective barg aining ag ree ment, or t o repla ce Hardison with employ ees who re q u i re d p remium wag es, went too far and cre ated an undue hardship on TWA. Id

. at 80, 84. As the Court explained, to require either scena

rio would be “[t] o require TWA to bear a more than a de minimis cost in order to give Har dison Saturday ’s off.” Id. at 84. Title VI I clea rly does not requir e this result. UTK see ms to twist the district court’s f inding a nd the Hardison decision by insisti ng that

a signific ant eff

ect on a co-worke r will suffice to establish an undue hardship. This is an inacc urate

rea ding of the holding in Hardison

. Title VI I does not exempt acc ommodation which cre ates undue hardship on the employe es ; it require s rea sonable acc ommodation “ without undue hardship on the conduct of the employ er’s business .” 42 U.S.C. § 2000e(j) ( emphasis adde d).

We stop short of holding that an employ ee reque sting relig ious acc ommodation can never 4 be trea ted differently

. The very nature of this ty pe of acc ommodation require s that, wher e an employ er opera

tes its business on Saturday s, a Saturday Sabbatar ian’s acc ommodation will require another employ ee to work a Saturday shift. Thus, wher e an employ er is ab l e t o re as onably acc ommodate t his relig ious reque st, it is es s en t ially trea ting employ ees differe ntly on the basis of relig ion as contemplate d by the Act. - 9 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille The Hardison Court was unwilling to deprive employ ees of their contra ctual rig hts under the barg ained for seniority sy stem. Hardison , 432 U.S. 80-81. The Court rea soned that Title VI I itself provides specia l trea tment for seniority sy stems, see 42 U.S.C. § 2000e-2( h), and thus the adoption of a neutral sy stem, such as seniority , was protec ted under the Act absent discriminatory intent, despite “discriminatory cons eq u en ce s . ” Id

. at 82. Requiring TWA to brea ch provisions of a collective barg aining ag ree ment and risk the union or other employ ees filing suit is surely more than

a de minimis cost. Thus, Hardison does not stand for the proposition that employ ee dissatisfaction

or inconvenienc e alone cre ates an undue hardship; rathe r, it is the effect such dissatisfaction has on the employ er’ s ability

to opera te its business that may alleviate the duty

to acc ommodate. Appellee labels our decision in Draper as “outdated.” The Fifth Circuit seems to sug g est the

s am e i n s t ati ng , “

Draper was decide d prior to Hardison , and thus the continuing validity of any implication in Draper that the employ er may be requi re d to forc e other employ ees into a disadvantag eous permanent swit ch of shifts ag ain s t t h ei r wishes is doubtful.” Eve rsley v. MBank Dallas , 843 F.2d 172, 176 (5th Cir. 1988). Howeve r, the Supreme Court’s decision in Hardison did not overrule Draper

and it rema ins good la

w in this Ci rcuit. Acc ording to Draper , “[i] t is conce ivable that employ ee morale problems could become so acute that they would constitute undue hardship” an d t h at such discontent can lead to “cha otic personne l problems.” Draper , 527 F.2d at 521. Thus, contra ry to UTK’s asser

tions, Hardison and Draper are not in conflict. Both require the employ er to s h o w an undue hardship on its business, but al s o re co g nize that an accommodation’s effec t on a co-worke r may lead to an undue hardship on the employ er . - 10 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille Meador ’s threa t to quit her job as a Coordinator if forc ed to car ry the emer g ency phone ever y other wee kend does prese nt a colora ble claim of undue hardship. I f Meador wer e to leave the depar tment, there would only be on e C o o rd i nator available , Rost, to work on Fr iday nights and Saturday s. Given that Rost has alre ady reje cted the idea of working ever y other wee kend, if he had assumed sole responsibility for the emer g ency phone this would have potentially cause d a “cha otic personne l problem.” And a s we stated in Draper , personne l problems can le ad to undue ha rdship

on an employ er. The University , howeve r, has provided nothing to show that Meador ’s threa t was more than me re “ g rumbling.” As such, Crider has ra ised a disputed issue and summary judgme nt was pre mature. UTK also insists that monitoring the emer g ency phone was n o t t h e o nly duty that Crider would have been unable to perf orm in light of her relig ious beliefs. UTK arg ues that Crider would not have been able to proper ly function as a Prog rams Abroa d Coordinator beca use she would have been unable to attend campus outrea ch prog rams, activities at various confe renc es, and “site visits” that often have events on Fr iday nights and Saturday s. UTK submits that this would require it to send

an additional Coordinator with Crider on fore ign “site visits,” there by cre ating more than a de minimis cost to the school. UTK deter

mined that “site visits” wer e an essential j ob function of a Prog rams Abroa d Coordinator and that it would suffe r hardship if Crider rema ined in the position. Crider did not have the opportunity to participa te in a “site visit” prior to her termination, so an acc ommodation for that situation was not y et nece ssary , but an employ er may show undue hardship befor e an

acc ommodation has been put into place

. See Draper , 527 F.2d at 520; Virts v. Consol. Freightways - 11 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille Corp. , 285 F.3d 508, 519 (6th Cir. 2000). Howev er, acc ording to Ms. Meador ’s deposition testimony , it is possible to “opt-out” of sessions and rec eptions at confe renc es and it is possible that events on “ site visits ” will not be sche duled on Fr iday nights a nd Saturday s. Be cause a g enuine issue of materia l fac t exis ts as to the possible hardship UTK might suffe r by acc ommodating Crider ’s re ligious belief s, summary

judgme nt was inappropr iate. C. Frustrat ion of Accomm odation Summary judgme nt is inappropria te wher e there is a question as to whether the employ er inhibited, frustra ted, or impeded volunteers from swapping shifts. McG uire , 956 F.2d at 610. Crider points to Meador ’s deposit ion testimony wher e Meador indi cate d that afte r Dr. W o o d s p o k e with Dr. Rudolph and C h es n ey ab o u t the shift exchang e, Dr. Wood told Meador and Rost not to do any thing differ ent at work, despite Crider’s reque st for acc ommodation. Even if Dr. W ood was

s i m p l y t ry ing to assess the situation befor e Rost and Meador ag ree d, Dr. Wood’s words could b e construed as instructing Rost and Meador not to acce pt the s hift exchang e. Viewing the evidence in the light most favor able to Crider, we find that she has raised a g enuine issue as to whether UTK frustra ted, inhibited, or impeded her eff orts at obtaining such an acc ommodation. Be cause a dispute of materia l f

act rema ins, summar

y judgme nt was an inappropria te dispositi on of this issue as well.

I I I

. We conclude , there fore , that th e ex istence of g enuine issues of m ater ial fac t as t o both the

rea sonablene ss of the acc ommodation UTK provided C rider and UTK’s ability to rea sonably

acc ommodate her without undue hardship prec lude s ummary judgme nt. Acc ording ly , we rev erse and re mand. - 12 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille McK EAGU E, C ircuit Judge, dissenting. I would aff irm the district c ourt bec ause, upon viewing the re cord in the lig ht most favorable to Cride r, the University ’s Prog rams Abroa d Offic e

was e ntitled to sum mary

judgme nt as a matter

of law. A ccor dingly , I respe ctfully dissent. A thoroug h consideration of the undisputed rec ord reve als that the University is e ntitled to summary judge ment. The Prog rams Abroa d Offic e at the University is char g ed with overse eing

n ea rl y 1,000 students study ing abroa d in approximately 35 countries. The supervisor o f t h e Prog rams Abroa d Offic e, Dr. Wood, was hired in 2007 shortly afte r a student study ing abroa d in Fr ance unexpectedly died. Recog nizi ng that the trauma of this trag edy was amplified by fac ulty and University confusion over how to best rea ct in a crisis situation , Dr

. W ood implemented new

emer g ency

proce dures f

or students and fa culty

abroa d. T h e centerpiec e of the new emer g ency proce dures was an emer g ency cell phone (t h e “eme rg ency phone”) , which cre ated a single point of contac t in an emer g ency . Dr. Wood assig ned responsibility for t he emer g ency phone to the Prog rams Abroa d Offic e’s Coordinators afte r deter mining they wer e the only staff members with sufficie nt expertise and training

. At the time Dr. Wood instit uted the emer g ency phone prog ram i n M arc h 2008, the Prog rams Abroa d Offic e had three Coordinator positions. Meador and Rost held two of the positions and the third job rema ined

vaca nt until C rider w as hired in Ma y 2008. Dr. Wood made clea

r that her “assumption was that the [P rog rams Abroa d Offic e] would be staffe d with thr ee exempt coor dinators.” I ndeed, she believed that “having only two Coordinators

car ry ing the phone on an ong oing basis constituted an unacc eptable risk to our students and fac ulty .”

- 13 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille Dr. Wood anticipated that emer g encie s may require more than one Coordinator to resolve, there by

cre ating a prec arious situation g iven the fac t that the Coordinators trave l fre quentl y fo r wo rk and “whe n one was trave ling, the other had responsibility for the phone with no backup in the event of a per sonal emer g ency

or fa mily crisis.” Crider

does not J uly

19, 2012 dispute these fa cts. Dr. Wood also “re cog nized that car ry ing the phone was an onerous burden to assume so fre quently

. Coordinators must keep the phones with them at all times, including wee kends, and must

rema in in an environment wher e they can hear and respond immediately to a call.” Coordinators are required to monitor the phone for seven day shifts from Monday to Monday

. Moreove r, Coordinators are require d to stay in Knoxvi lle while they are car ry ing the phone so they could acc ess files in the Prog rams Abroa d Offic e in the event of an emer g ency . The demands of the emer g ency phone there by eff

ectively deprive d Meador and Rost of ever y other wee kend un t i l a t h i rd Coordinator could be found. As both Meador and Rost made clea r, this was extremely burdensome, espec ially since they

wanted to lea

ve town on the we ekends to visit family

. Given both the safe ty and the staffing issues resulting from having only two Coordinators to manag e the emer g ency phone, the P ro gra m s Ab road Offic e continued to sear ch for a third Coordinator. When Crider wa s interviewe d, Dr. Wood told her that wee kend work was require d. At no point in the interview did Crider indicate that she would be unable to work on the wee kends. Crider was offe red the position and she acc epted. On her fourth day as Coordinator, Crider informed the Prog rams Abroa d Offic e that she was a Seventh-Da y Ad v en t i s t and that her relig ious beliefs prec luded her from working on her Sabbath. Crider ref used to p er fo rm an y work, including participa ting in the e merg ency phone rota tion, from sundown Fr iday to sundown Saturday

. - 14 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille For near ly one month both the Prog rams Abroa d Offic e and the University explored possible

means to acc ommodate Crider. Crider proposed an alterna te emer g ency phone schedule that shifted her Saturda

y responsibilities to Meador and Rost. Dr. Wood met with Meador and C rost to ask if they wer e willing to acc ept Crider’s proposal, and both Meador and Crost stated that they would not voluntarily ag ree to adjust shifts beca use it would perma

nently and unacc eptably compromise their

wee kends. Dr. Wood also met with Crider and posed at l ea s t t h re e scena rios in an attempt to

acc ommodate her: (1) Dr. Wood asked Crider if she would be willing to car ry the phone if the other Coordinators wer e out of town; (2) Dr. Wood asked the plaintiff if she would car ry the phone if one Coordinator was out of town and the other Coordinator had a family crisis; and (3) Dr. Wood asked Crider if she would be willing t o assist the other Coordinators in an emer g ency situation. Crider ref used all three proposals. After meeting with Crider to fully explore the para meters of her relig ious limit ations, Dr. Wood deter mined that Crider could not be acc ommodated. During this entire period, Meador and Rost continued to monitor the phone on alterna ting wee kends just a s they had prior to Crider’s e mploy

ment. Under these circ umstances, acc ommodating Cr id e r ’ s r e ligious needs was an undue hardship. Title VI I only

require s an employ er to of fer employ ees a “r easona

ble ac commodation” if doing so would not cre ate an undue hardship. See 42 U.S.C. § 2000e(j). Title VI I was not intended to forc e employ ers to “bea

r more than a de minimis cost” in acc ommodating employ ees. Hardison , 432 U.S. at 81. I ndeed, an employ er is not require d to suffe r a chaotic personne l problem in order to be in compliance with Title VI I

. See Draper , 527 F.3d at 520. Rather, “the mere possibili ty of an adver se imp act on co-w orker s . . . is sufficie nt to constitute an undue hardship.” Virts v. Consol. - 15 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille Freightways Corp. , 285 F.3d 5 0 8 , 5 2 0 -2 1 (6th Cir. 2002) (apply ing Hardison ). Fur

ther, an employ er’ s neutra l decisions, such as shift scheduling , are protec ted under Title VI I

. Id. at 82. This is true eve n if such dec isions result in “discriminatory conseque nces.” Id. at 82. There is no evidenc e in the rec ord that Crider’s termination was any thing other than a neutra l employ ment decision based on her inability to pe rfor m the core require ments of her position. The

emer g ency phone rotation was instit uted well befor e Crider was hired and the rec ord reve als that the Prog rams Abroa d Offic e viewed deviations from this prog ram as a threa t to its ability to eff

ectively handle emerg encie s. Acc ordi ng ly – whether Crider’s acc ommodation is viewed from a financ ial

or structura l perspe ctive – it would have imposed far more than a de minimus burden on the Prog rams Abr oad Of

fice . Title VI I does not ca ll for such a result. Hardison , 432 U.S. at 81. T h e majority wrong ly attributes the Prog rams Abroa d Offic e’s inability to acc ommo d at e Crider to employ ee “g rumbling.” The small number of qualified staff in the Prog rams Abroa d Offic e meant t h at acc ommodating Crider’s relig ious prac tices would have g one well bey ond the “mer e possibili ty ” of adver sely impacting Meador and Rost. The burden on them was not a metaphy sical

conce rn with uncer

tain conseque nces: Meador and Crost had al re ady experience d the burdens of manag ing the emer g ency phone ever y other wee kend for a sustained period of time and they did not want that arr ang ement to become perma nent. As Meador an d R o s t emphasized, this would signific antly impact their persona l lives. T h i s is leg ally sufficie nt to constitute an undue burden under Title VI I

. See V

irts , 285 F.3d a t 520-21. Fur thermore , the majority ’s approa ch toward Meador and Rost is disc o n ce rt i ng beca use “Title VI I does not contemplate such unequal trea tmen t

. T h e repe ated, unequivoca l emphasis of - 16 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille both the lang uag e and the leg isla t i v e history of Title VI I is on eliminating discrimination in employ ment, and such discrimination is proscr ibed when it is direc ted ag ainst majorities as well as minorities.” Hardison , 432 U.S. at 8 1

. I f t h e Prog rams Abroa d Offic e had forc ed Crider’s coworke rs to involuntarily assume part of C ri d er’s emer g ency phone responsibilities beca use of Crider’s relig ious beliefs, the eff ect would be discrimination a g ainst Meador and Rost in violation of Title VI I

. See id. Finally , the majority err oneously conclude s that the rec ord contains an issue of materia l fac t

as to whether the Prog rams Abroa d Offic e frustra ted Crider’s request for acc ommodation. The majority cites to McG uire for the proposition that “[s] ummary judgme nt is inappropria te when there is a question as to whether the employ er inhibited, frustra ted or impeded volunteers from swapping shifts.” See McG uire v. Gene ral Motors Corp. , 956 F.2d 607 (6th Cir. 1992). I n McG uire , howeve r, t h e empl oy ee started a voluntary shift-swap scheme that “had been opera ting with at least s o m e deg ree of succe ss” until the employ er intervene d and made it “‘virtua lly impossibl e’” for the scheme to continue. Id . at 610. That is not the case here

. First, there wa s no pree x isting employ ee- g ener ated shift-swap scheme at t h e P ro grams Abroa d Offic e. I nstead, Meador and Rost wer e never amena ble to voluntarily g iving up at least part of ever y other we ek end — they both told Dr. Wood they wer e unwilling to a cce pt suc h an arr ang ement, and Meador even threa tened to quit. Second, there is no evidenc e that the Prog rams Abroa d Offic e rende red it “virtually impossibl e” for Crider to obtain

acc ommodation from h er co wo rk ers. For this point, the majority relies solely on Dr. Wood’s instruction to Meador a

nd Rost to not do any

thing diff ere nt a t w ork. Yet the rec ord does not show - 17 -No. 11-5511

Crider v. Unive rsity of Tennessee, Knoxv ille that this instruction contributed to Meador ’s and Rost’s decisi o n t o n o t acc ept C rider’ s proposed shift chang e (or even that it occur red prior to them informing Dr. Wood of their decision). I nstead, it shows that their unwillingness to perma nently sacr ifice their wee kends was alre ady independe ntly established. I n any event, any comment made by Dr. Wood was irrele vant since it was unrea sonable for the Prog rams Abroa d Offic e to g rant Crider’s proposed acc ommodation. The rec ord establishes that the emer g ency phone prog ram wa s integ ral to the Prog rams Abroa d Offic e and Dr. Wood dee med it unsustainable to have only two coordina tors handle the emer g ency phone prog ram. Adding a third coordina tor was one of the very rea sons Crider was hired. Title VI I does not require the University to make the Hobson’s choice of ei t h er restruc turing its entire opera tion or jeopar dizi ng the wellbeing of its employ ees, students, a nd fac ulty

. The rec ord, viewed in a light most favor ab l e t o Crider, reve als that the University met its burden. Not only did the University offe r Crider multipl e acc ommodations, but the University also demonstrated that Crider’s rec alcitra nce would both cre ate an undue burden for her co-w orker s and threa ten the ability of the Prog ram Abroa d Offic e to handle an emer g ency . These are not in dispute. The rec ord also ref

lects that Crider was uncooper ative at ever y turn, thus failing to satisfy her burden under Title VI I

. See Smith v. Pyro Mining Co. , 827 F. 2d 1081, 1085 (6th Cir. 1987) (noting that an employ ee “must make some eff ort to cooper ate with an employ er’ s at t empt at acc ommodation). Acc ording ly , the Univer sity met its Titl e VI I burden a nd summary

judgme nt is proper. For the fore g oing r easons, I

respe ctfully

dissent.

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