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holding that an employee's use of "have a blessed day" with customers was a personal preference rather than a bona fide religious belief because it was not a required element of the employee's faith
Summary of this case from Andrews v. Virginia Union UniversityOpinion
IP 00-1364-C T/G
January 30, 2001
B Kevin Betz Sutherlin Benz Indianapolis, IN 46204
Donald S Smith Riley Bennett Egloff Indianapolis, IN 46282
Nina G Stillman Vedder Price Kaufman Kammholz Chicago, IL 60601-1003
ENTRY ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Is it a good thing for a person to be allowed to say (or write) "Have a Blessed Day" in the workplace? The obvious answer in the minds of most people would be that of course it is. This phrase may have some religious overtones which some might consider offensive, but it also expresses general goodwill, and in that sense, it is not unlike the ubiquitous "Have nice day" or "Have a good one" phrases that people often say to each other or the `smiley face' drawings that many people add to notes or e-mails. It is an innocuous phrase, it may extend a positive sentiment and it is, at worst, harmless. But does federal law require a business to permit its employee to include the "Have a Blessed Day" phrase in business communications with customers of the business? The Plaintiff, Elizabeth L. Anderson, wants this court to issue a preliminary injunction ordering the Defendant, U.S.F. Logistics (IMC), Inc. ("USF"), to do just that. So, it is the answer to this more critical question that will determine whether she obtains that relief, and ultimately, may determine whether she wins this lawsuit when it eventually comes to a conclusion. It should be understood, though, that the injunctive power of a court is reserved for compelling what the law requires, and is not merely a vehicle for promoting things that generally are good.
Ms. Anderson, sued her employer, USF, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. "2000e et seq., alleging that USF failed to accommodate Ms. Anderson's sincere and meaningful religious practice and belief. Ms. Anderson, in her Complaint, also alleges claims for hostile work environment and retaliation under 42 U.S.C. " 1981, 1988. In the motion before the court, Ms. Anderson seeks preliminary injunctive relief prohibiting USF from maintaining employment policies and practices which she claims discriminate against her because of her religious beliefs. A hearing was held on this matter on November 16, 2000, but because of the expedited schedule, it was not consolidated with a trial on the merits regarding the requested injunctive relief.
Though this entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the entry or the subsequent citation of it in other proceedings.
A discussion of the evidence presented at the preliminary injunction hearing will set the stage for an explanation of the legal principles involved. The parties had some disputes about the relevance of the various parts of the evidence that was introduced but, for the most part, did not disagree about its accuracy. The discussion of the evidence which follows is the court's evaluation of what it heard. To any extent that the court's interpretation of the evidence is at odds with what a party contends, this is the result of the court's weighing of the evidence, which it is entitled to do as the finder of fact on the matters presented by this motion for a preliminary injunction.
Elizabeth Anderson Is A Religious Person
Elizabeth Anderson began attending church at an early age. Her involvement in religious activities began when she was about six years-old, and was inspired, at least in part, by the church involvement of her grandparents. Her interest in religious activities continued through her formative years. As an adult in her late 20s, she renewed her church involvement by attending the Higher Ground Apostolic Church in Columbus, Ohio. She was married by this point in her life, and a succession of moves related to her then husband's employment followed. Eventually, Ms. Anderson moved to the Dallas-Ft. Worth area.
Events in Ms. Anderson's personal life eventually resulted in her moving to Indianapolis. At some point, Ms. Anderson became estranged from her husband and they eventually divorced. In 1995, her father, still in the Columbus, Ohio area, suffered severe cardiac problems. Ms. Anderson was deeply moved by the survival of her father from these difficult medical problems. She felt that only by God's grace was her father allowed to live. On the trip back to Texas, as Ms. Anderson put it, she turned her life over to God. From this point forward, her religious activities began to play an even larger role in her life. Ms. Anderson also pledged to her father that she would move back to the Midwest to be near him if he would perform the difficult rehabilitation program that he faced. She was working at Hertz Rent-a-Car in Texas so she sought to transfer closer to her father's home. the nearest Hertz location to Columbus to which she could obtain a transfer was at Indianapolis. She stayed with that employer at the Indianapolis location for only about six weeks because she was being required to work weekends which precluded her from attending church on Sundays. But in the meantime, she continued to look for another job with a more suitable schedule. Her job search lead her to USF (which was then known as InterAmerican, but it will be referred to as USF throughout this entry). When she was being interviewed, she was told that she may have to work on some Saturdays and on an occasional Sunday. She let the interviewer know that she wanted Sundays off for church. But interference with church attendance is not what this dispute is about. She started to work there in December of 1995. Generally, she has not had to work on Sundays and she does not complain that her work has interfered with church attendance. During her first year with USF, she visited a variety of churches on the weekends.
While at USF, Ms. Anderson became acquainted with a gentleman who eventually became her husband. Through his suggestion, Ms. Anderson was introduced to his church, the Phillips Temple, a Christian Methodist Episcopal Church. She immediately felt that this church was where she was intended to be. She became a member there early in 1997 and has been active in that church ever since.
From early on in her church activities, Ms. Anderson recalls hearing the phrase "Have a Blessed Day." She recalls hearing the phrase during church services with her grandparents, among members of the church as they were departing from services, as well of their use of it at church related activities like picnics and on the telephone. Ms. Anderson would use the phrase herself in similar settings and also used it in public activities that were not church related, such as at stores and gas stations and at her place of employment. As she put it, the phrase "Have a Blessed Day" reflects her connection with God and it was a part of her relationship with Jesus. She considers it to be a religious practice.
At Phillips Temple, and in conjunction with church members and church related activities, Ms. Anderson has heard others using the phrase "Have a Blessed Day." She has heard it after prayers, after meetings, in telephone conversations among members and when she would run into fellow church members on the street. The pastor of her church verified during his testimony at the preliminary injunction hearing that it is a practice of his church and its members to use such a phrase, in other words, to encourage individuals with whom they speak to be blessed or have a blessed day. However, the pastor did not indicate that the use of the phrase was a mandatory practice of the denomination or of the Temple itself. Ms. Anderson often used the expression herself and considers it to reflect her religious faith and her love for her God and for other people.
In fact, Ms. Anderson's husband is an employee at USF and a member of Phillips Temple, and, according to an USF supervisor, he does not use the "Blessed Day" phrase at the USF workplace.
The Business Of USF Logistics
USF is a company which does shipping for other companies. Ms. Anderson began work at an entry level position, which she referred to as a "puller," whose responsibilities included putting the items to be shipped together in a group for shipping. When she initially started, she was making less money than she had made at Hertz. Within less than a year, she was promoted to the position of "shipper" and was moved to the second USF building which was devoted to serving the shipping needs of USF's largest client, Microsoft. Again, in less than a year, she was promoted to customer service specialist and then in 1999 to office coordinator, jobs with increasingly more responsible duties and greater compensation.
As an office coordinator, Ms. Anderson regularly receives e-mails from employees at Microsoft which are advance notices regarding shipment, called "ASNs" (advance shipment notifications). She processes that information in a way so that the receiver of the shipments can know what to expect. She also creates ASNs to send notice when USF is to ship items somewhere else. She also creates documents called "ASN scorecards" which are sent each Monday to Microsoft. This document is essentially a spread sheet that details all the shipments which came to USF the prior week and whether there were shortages or overages in the shipments or late arrivals. She also has some direct contact with about ten vendors with whom USF has business. Some of this contact is face-to-face, some is by telephone, and some is by fax and e-mail. In 1998, while a customer service specialist, Ms. Anderson was required to send certain faxes but was not required to use e-mail for communications.
According to Ms. Anderson, she first used the expression "Have a Blessed Day" at USF not long after she began work there in talking with another USF employee, John Price, who also serves as a minister at a small church. She and Mr. Price would occasionally discuss the Bible or other matters related to religion. She had few other occasions to speak to other workers during her initial assignments. However, after her transfer to the Microsoft building, she often used that expression when speaking with co-workers. Sometimes, she would close faxes that she sent with the expression "Have a Blessed Day." She did not have any significant contact with Microsoft employees until 1999, but she did use the phrase with vendors who occasionally visited the USF jobsite. No one, including her managers or supervisors, objected to her use of the phrase to that point.
The Microsoft Incidents
Ms. Anderson continued to use the "Blessed Day" phrase after she began having e-mail communication with various Microsoft employees. Plaintiff's Exhibit 1 is a collection of faxes and e-mails sent by Ms. Anderson in 1998 and 1999, nearly all of which contain the phrase "Have a Blessed Day" or some variation of that phrase. She heard no complaints about her use of the phrase until June 9, 1999. On that date, Mark LaRussa, a Microsoft employee who served as Microsoft's liaison with USF, came with Chuck Tolley, the USF facility manager and one of Anderson's supervisors, to Ms. Anderson's work area. LaRussa was considered by Tolley to be the Microsoft vendor account manager. According to Tolley, LaRussa can be rather demanding and difficult to work with, but obviously, because Microsoft is the only customer of that particular aspect of USF's business, they make all reasonable efforts to please him when possible. It could be said that from USF's perspective, when LaRussa speaks, he speaks for Microsoft. Because Microsoft is essentially USF's only customer for the particular phase of the business for which Ms. Anderson works, USF pays a great deal of attention to what he says. LaRussa commented that Microsoft had a problem with her use of the "Blessed Day" phrase in business communications. She asked why, to which he responded that it was a religious expression and that "Microsoft doesn't play that shit." Just a couple of days prior to LaRussa's visit, Ms. Anderson had transmitted an ASN scorecard to Microsoft with the "Blessed Day" expression as part of the transmittal. Jeff Starnes, Ms. Anderson's immediate supervisor, had apparently overheard the conversation from a nearby location. Ms. Anderson disputes it, but credible testimony from Tolley established that after hearing the exchange with LaRussa, Tolley directed her not to use the "Blessed Day" phrase in communications with Microsoft. She made no response to this direction. The following Monday, June 14, 1999, Ms. Anderson sent another ASN scorecard to Microsoft, again with the "Blessed Day" phrase contained in the transmittal. By USF practices, copies of her e-mails also were sent internally at USF to Jeff Starnes. After receiving the e-mail, LaRussa called Starnes and said, "She did it again, look at the e-mail." Starnes told LaRussa that he would take care of it. Shortly after Ms. Anderson sent the scorecard, Jeff Starnes e-mailed her and told her to please remove the "Blessed Day" phrase from all her correspondence with Microsoft. About ten minutes later, Starnes came to Ms. Anderson's work area and told her that USF does not have a problem with her use of the phrase but that Microsoft does.
Ms. Anderson contends that she responded to these directions by telling him that the phrase was a religious practice of hers and that her relationship with her God was too important to her to submit to his directions without knowing who was offended by the expression. She told him that if he would identify the person or persons that it offended, she would not use the phrase with that person or persons. She also asked whether Starnes could send the scorecard to the individuals who were offended by the phrase. There is no indication that Starnes responded to these requests so that his instructions and her work duties were unchanged.
USF disputes that Ms. Anderson described her use of the "Blessed Day" phrase as a religious practice in her dealings with Starnes and Tolley. However, that is not material to the court's consideration of the issue. USF treated the phrase as if it had religious connotations, regardless of whether Ms. Anderson specifically defended her use of it as being a religious practice. Similarly, USF clearly understands that Ms. Anderson is a religious person and that many of the things that she does, such as the way she maintains her workplace, have a religion related component to them.
Starnes informed Tolley that LaRussa contacted him after the transmittal of the June 14 e-mail and that LaRussa had complained about it.
The Monday after that discussion, June 21, 1999, Ms. Anderson again transmitted the ASN scorecard with the "Blessed Day" expression. This was brought to Tolley's attention, again by Starnes, when he provided Tolley a copy of the e-mail. Shortly after that, Ms. Anderson was sent an e-mail by Tolley asking why she continued to include that phrase in communications with Microsoft after she had been instructed by two supervisors not to do so. She then asked to talk to Tolley about the situation. That discussion was held the following day. Jeff Starnes was also present for at least a portion of that discussion. Ms. Anderson reported to Tolley that she had contacted several people at Microsoft and learned that they did not object to her use of the phrase. She claims that she again asserted that it was a religious expression of hers and that if they would just identify who it offended, she would not use it with those particular individuals but would otherwise use it as she saw fit. Tolley would not identify any particular individuals nor would he relent in his instructions that she not use the phrase in communications with Microsoft. Tolley and Starnes conceded that there was no prohibition in the USF Employees' handbook which prohibited use of such a phrase. The discussion ended with Tolley asking Ms. Anderson whether she would continue to use the "Blessed Day" phrase in correspondence with Microsoft, to which she responded that she did not know, but that she would think and pray about it.
Which Tolley denies, but as previously noted, the court does not consider whether Ms. Anderson explicitly articulated that the phrase was a religious practice to be material because USF treated it as though it was.
The Disciplinary Actions
The following morning, Tolley gave Ms. Anderson a written reprimand (called a Corrective Action Counseling Reminder) which Ms. Anderson signed after the original writing was modified. The reprimand read as follows:
1. Identify specific problem requiring counseling notice: (be specific, include time, date, facts)
On June 9, 1999 Mark LaRussa made a comment about the way Liz was closing her documents directed towards Microsoft. (Liz was closing with "Have a blessed day") Microsoft likes to keep things on a professional level So Mark ask (sic) that Liz not use this closing again.
On June 14, 1999 Liz closed a Microsoft document again with "have a blessed week", again Microsoft complained that this is unacceptable and must stop! Jeff Starnes sent Liz e-mail instructing her to please remove the words "Have a blessed week" from all documents sent to Microsoft.
On June 21, 1999 the same closing appeared on a Microsoft document. I e-mailed Liz and ask (sic) her why this continued to appear after we had instructed her to quit using this closing. That next morning Liz and I talked in person and she said she continues to use the closing because she feels there is nothing wrong with it, and that she had contacted someone from Microsoft and they knew of nothing referring to this in the handbook. I told her that our Account Manager has made it very clear that Microsoft is very adamant in the fact that all documents be presented in a professional manner
2. Specific points discussed during the Corrective action counseling interview: action counseling interview: June 23, 1999 Liz, Jeff Starnes and myself had a meeting and instruction (sic) Liz if she continued to use this type of closing she would be facing disciplinary action up to and including termination.
The original Reminder contained language which indicated that Tolley had instructed Ms. Anderson not to use the "Blessed Day" phrase after the June 9 incident. Ms. Anderson disagreed that she had received such an instruction and would not sign a Reminder which contained that language. Rather than leave the dispute without a signed Reminder, Tolley rewrote the Reminder in the form in which it is reproduced above. Ms. Anderson signed the revised reminder. It is interesting to note that neither the original or the revised Reminder contained any reference to Ms. Anderson defending her use of the phrase as a religious practice. If, in fact, she actually said that in her discussions with her USF supervisors, she did not insist on the inclusion of that information in the Reminder, even though she did insist on a change on the matter of whether Tolley had instructed her to discontinue the use of other than standard business closings.
Shortly thereafter, USF issued the following directive to all Indianapolis employees in the Microsoft Building:
DATE: June 23, 1999 TO: All USF/Microsoft Team Mates CC:
FROM: Chuck Tolley
Re: Professional Ethics
Here at USF we do our best to conduct ourselves in a business like and professional manner at all times.
This includes our manner of speaking verbally, written, or replies via E-mail.
When addressing any of our customers or fellow teammates always close with a "Thank You", Thanks or Sincerely Yours, followed by your name.
In all matters of business we must all be on our guard not to offend any one.
The language in this paragraph was contained in Plaintiff's Exhibit 6 which was unsigned. Plaintiff's Exhibit 7, was signed and dated June 24, 1999, and contains a modified version of the paragraph which reads:
When addressing any of our customers or fellow teammates please refrain from using additional religious, personal or political statements in you're (sic) closing.
In closing I wish to thank all of you for your cooperation.
Sincerely,
Chuck Tolley
This policy was hand delivered to Ms. Anderson by Tolley. It was later revised slightly, as indicated. The revision was also hand delivered in the same manner. Ms. Anderson asked Tolley whether the policy just applied to her or if it applied to all of USF. Tolley responded that it applied to all teammates. Tolley called the attention of USF workers to the policy during his standard daily meeting with them. Subsequent to the delivery of the policy to Ms. Anderson, it was posted in the USF break room where it remained as of the hearing date.
On its face, the language of the policy forbids the use of any religious, personal or political expressions, even among co-workers. It appears to apply to both verbal and written communications. USF and Tolley contend that it does not apply to discussions among co-workers at USF, despite the language of the policy. Tolley testified that he told Ms. Anderson directly in one of his meetings with her, either on June 9 or 22, that he had no problem with the use of the "Blessed Day" phrase in conversations with co-workers. He also indicated that with respect to a February 2000 discipline, which will be discussed below, it was made clear that it did not apply to her verbal expression, rather, it just related to her written communications with Microsoft.
According to Tolley, Ms. Anderson continues to use the "Blessed Day" phrase with co-workers. Ms. Anderson concedes that when she is asked at USF how she is, she often responds "Blessed."
On October 11, 1999, Ms. Anderson sent another e-mail message to a Microsoft employee containing the "Blessed Day" phrase. On the preceding day, a spokesperson on behalf of Microsoft, Nicole Miller, was quoted in a story in the local Indianapolis newspaper (The Indianapolis Star) as saying that Microsoft did not have a problem with
Ms. Anderson's use of the phrase and that Mark LaRussa had overreacted. Based on her reading of that article, Ms. Anderson decided that she could resume using the phrase. She reasoned that the discipline had been administered to her for the stated reason that Microsoft had objected to the use of the phrase, and now that Microsoft had publicly stated that it did not object, the reason for the discipline and any restriction on her use of the phrase had been eliminated.
Ms. Anderson had submitted to several interviews with the Star about her dispute with USF about the use of the "Blessed Day" phrase, and had appeared on at least one radio talk show about the subject. In fact, she had initiated the media contact about this matter prior to October 10, 1999, by writing to the Indianapolis Star seeking help with the dispute. In her interview with the reporter in connection with the October 10 story, she told him that there was nothing religious about her use of the "Blessed Day" phrase, that it was just her way of saying "Have a nice day."
Ms. Anderson's zeal in promoting public awareness about her dispute with USF may have prevented a resolution of this matter prior to litigation. Ultimately, Ms. Anderson refused to mediate this dispute through the EEOC because she was concerned that the confidentiality requirements of the EEOC mediation process would prevent her from talking to media representatives about the process.
The following day, Ms. Anderson went to Chuck Tolley's office and described to him what the newspaper's article had said about Microsoft's position on the "Blessed Day" phrase and requested that the June reprimand be voided. Tolley replied that you can't believe everything that you read and refused to withdraw the reprimand. He also declined to contact Microsoft to verify the newspaper account of the Microsoft position. Tolley's refusal to withdraw the reprimand is reflected in a written memo dated October 18, 1999. (Pl.'s Ex. 9.) Nonetheless, no punitive action was taken against Ms. Anderson for her use of the phrase on October 11.
Regardless of the restrictions placed by USF on Ms. Anderson's use of the "Blessed Day" phrase, she is permitted to do certain things in the workplace which have religious connotations. For example, she does not dispute that she has been permitted to hang various religious phrases in her work area, she reads the Bible on her work breaks, she listens to a religious oriented radio at her work station, she prays constantly (presumably not aloud) and she uses the "Blessed Day" phrase when addressing co-workers who do not object to it. On one occasion, USF management even asked Ms. Anderson to lead a prayer over the intercom system in connection with a holiday related office meal. Despite the language of the June 23 memo, both Tolley and Starnes testified that they permit Ms. Anderson to use the "Blessed Day" phrase with co-workers. There is, at least, no indication that she has been punished for using the phrase with co-workers. Despite Ms. Anderson's frequent use of the "Blessed Day" phrase in her external and internal written communications at USF, even she concedes that she does not always use it. She testified that sometimes if she spoke on the phone with an individual and is asked for a document, she may close the phone conversation with the "Blessed Day" phrase and then just send the document without adding the phrase. She also indicated that sometimes she just pushes the "send" button in transmitting documents and does not write or type in the phrase. On other occasions, when she is very busy, she won't take the time to include the phrase. USF introduced copies of several hundred documents (faxes, notes and e-mails) that Ms. Anderson had used for internal and external communications throughout the course of her employment at USF prior to June 14, 1999, which did not contain the "Blessed Day" phrase. On some of the faxes she sent which contain the "Blessed Day " phrase, she also drew `smiley faces' which she concedes are just her personal expressions and have no religious significance. She also drew a `smiley face' (with no "Blessed Day" phrasing) on an internal note sent to report her name change just prior to her marriage to Mr. Anderson in 1997. In speaking with an EEOC Intake Officer, Ms. Anderson conceded that her CME faith did not require her to end every e-mail with the "Blessed Day" phrase.
Between the October incident and February 2000, Ms. Anderson refrained from using the "Blessed Day" phrase in written communications with Microsoft. However, on February 15, 2000, she placed the phrase "HAVE A BLESSED DAY" on an ASN scorecard communication to Microsoft in all capitals, surrounded by quotation marks. She received another Corrective Action Counseling Reminder for that event. That Reminder emphasized that her greetings to co-workers and religious items on display in her work area were not at issue in the reprimand.
Tolley has not been notified by LaRussa or anyone else from Microsoft that Microsoft has retracted its objection to the "Blessed Day" phrase in business correspondence from USF. Ms. Anderson contends that she has told him that no one she spoke to at Microsoft objects to it and as noted, she called the account in the newspaper article to his attention. He also has not contacted anyone at Microsoft to inquire about the subject.
And so, the real question presented by this case is whether USF is committing religious discrimination or Ms. Anderson is being insubordinate. An analysis of the relevant legal principles follows.
II. Discussion
A. Preliminary Injunction Standard
"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation omitted); see also Caf 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993) ("A preliminary injunction is a drastic remedy[.]") (quotation omitted). This is especially so in an employment setting, where, by its very nature, injunctive relief is an extreme invasion of an employer's prerogatives. See Bonds v. Heyman, 950 F. Supp. 1202, 1212 (D.D.C. 1997); cf., e.g., Hetreed v. Allstate Ins. Co., 135 F.3d 1155, 1158 (7th Cir. 1998) ("Many of our cases have held that interlocutory relief in employment-discrimination cases should be rare."). In such a situation, injunctive relief should be considered carefully. See id. It is well-settled in the Seventh Circuit that to obtain preliminary injunctive relief, a plaintiff must establish: "(1) a reasonable likelihood of success on the merits; (2) irreparable injury and absence of an adequate remedy at law; (3) the threatened harm to the plaintiff outweighs the harm injunction may cause to the defendants; (4) that the granting of an injunction will not disserve the public interest." Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir. 1989) (citation omitted); see also, e.g., Rust Env't Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1213 (7th Cir. 1997) (same) (citations omitted). Thus, the threshold inquiry is whether Ms. Anderson proved that she was likely to prevail on the merits on her religious discrimination claim. See, e.g., Rust Env't, 131 F.3d at 1213 ("The threshold factor is the likelihood of success on the merits.") (citation omitted).
This court notes that while the district court in Bonds granted the preliminary injunction, the facts of Bonds and of this case are very different, although the principle for which Bonds is cited is sound.
B. Religious Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion[.]" 42 U.S.C. § 2000e-2(a)(1). 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 . . . religious observance or practice without undue hardship on the conduct of an employer's business." 42 U.S.C. § 2000e(j).
A plaintiff alleging religious discrimination under Title VII must first establish a prima facie case, after which the burden is on the employer to show that a reasonable accommodation of the religious practice was made or that any accommodation would result in undue hardship. See, e.g., Baz v. Walters, 782 F.2d 701, 706 (7th Cir. 1986). To make out a prima facie case, a plaintiff must show that "(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the employer's attention, and (3) the religious practice was the basis for the adverse employment decision." EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir. 1996) (citing Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir. 1993)). However, an employer need not accommodate a "purely personal preference." Vetter v. Farmland Indus., Inc., 120 F.3d 749, 751 (8th Cir. 1997); see also Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 682 (9th Cir. 1998). "Although the employer carries the ultimate burden to accommodate, the employee must make some effort to cooperate with an employer's attempt to resolve the religious conflict." EEOC v. Bridgestone/Firestone, Inc., 95 F. Supp.2d 913, 921 (C.D. Wis. 2000) (citing, e.g., Redmond v. GAF Corp., 574 F.2d 897, 902-03 (7th Cir. 1978)).
C. Prima Facie Case
The initial inquiry, as stated above, is whether Ms. Anderson has satisfied all of the elements of her prima facie case. At the outset, this court cautions "that the analysis which follows is tentative, since this case involves a preliminary injunction and [the court does] not wish to prejudice the outcome of the trial on the merits." Rust Env't, 131 F.3d at 1213 (citation omitted).
It is not necessary at this time to engage in a detailed analysis aimed at resolving the disputes over whether Ms. Anderson has established her prima facie case. Because of the court's finding in regards to the reasonable accommodation issue (discussed below), it is enough to assume that Ms. Anderson has established her prima facie case. Importantly, this court notes that it is assuming that Ms. Anderson has established the elements of her prima facie case only because it need not answer the difficult questions regarding the satisfaction of those elements in order to decide the merits of Ms. Anderson's motion. However, it is appropriate here to discuss in some detail the court's observation that Ms. Anderson may have difficulty establishing the first element of her prima facie case.
Under the first element of Ms. Anderson's prima facie case, she must prove that the practice for which she seeks accommodation is religious in nature and that it conflicts with an employment requirement. Under Title VII a practice for which protection is sought is religious if (1) the practice is religious in the plaintiff's own scheme of things and (2) the practice is sincere. See Redmond, 574 F.2d at 901 n. 12 (citing Welsh v. United States, 398 U.S. 333 (1970) and United States v. Seeger, 380 U.S. 163 (1969)). It is of no consequence that the practice is not required by the tenets of Ms. Anderson's religion. See id. at 900 (holding that religious practices are not only those that are required by the tenets of the religion). It matters only that Ms. Anderson's practice of using the phrase "Have a Blessed Day," or some minor variation thereof, was religiously motivated. See id. at 900-01 ("We conclude that conduct which is religiously motivated, i.e., all forms and aspects of religion, however eccentric is protected [under Title VII].") (quotation omitted). After Ms. Anderson demonstrates that a practice is religiously motivated and sincere, she must then demonstrate that a conflict existed between her religious practice and an employment requirement.
In her Reply Brief, Ms. Anderson argues that the "sincerity" analysis concerns Ms. Anderson's sincerity in her underlying religious belief system and not her sincerity in her religious practice. While it is true that the Seventh Circuit in Redmond, 574 F.2d at 901 n. 12, held, "We believe the proper test to be applied to the determination of what is `religious' under § 2000e(j) . . . [is] (1) is the `belief' for which protection is sought `religious' in person's own scheme of things, and (2) is it `sincerely held[,]'" Ms. Anderson's argument is slightly flawed.
The 1972 Amendment to Title VII provides, "The term `religion' includes all aspects of religious observation and practice, as well as belief, . . ." 42 U.S.C. § 2000e(j). The words belief, observance and practice are used interchangeably by courts when defining the first element of a prima facie case of religious discrimination. Therefore, if it is a practice for which an employee seeks accommodation, then it is that practice which the employee must demonstrate is sincere. Likewise, if the employee termed the thing for which it sought accommodation an observance, then it is that observance which the employee must prove is genuine. This conclusion is evidenced by the fact that the words belief and practice are consistently used interchangeably both within the Seventh Circuit and across different circuits when courts describe the first element of a prima facie case. See, e.g., EEOC v. United Parcel Serv., 94 F.3d at 317 ("An individual alleging religious discrimination must ordinarily show that: (1) a bona fide religious practice . . . .") (citation omitted); Tiano, 139 F.3d at 681 ("First, the employee must establish a prima facie case by proving that (1) she had a bona fide religious belief. . . .") (citation omitted); Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996) ("To establish a prima facie religious accommodation claim, a plaintiff must establish that: (1) he or she has a bona fide religious belief. . . .") (quotation omitted); Swartzentruber v. Gunite Corp., 99 F. Supp.2d 976, 978 (N.D. Ind. 2000) ("To establish a prima facie case of religious discrimination, a plaintiff must show that (1) he has a sincere religious belief, observance or practice. . . .") (citations omitted); EEOC v. Bridgestone/Firestone, Inc., 95 F. Supp.2d at 920 ("To establish a prima facie case of religious discrimination, the employee must show the following: (1) he has a bona fide religious practice. . . .") (citation omitted); Van Koten v. Family Health Mgmt., Inc., 955 F. Supp. 898, 900 (N.D. Ill. 1996) ("Under the accommodation framework, the plaintiff must show the following three elements to establish a prima facie case: First, the plaintiff must show that he or she holds a sincere religious belief. . . .") (quotation and citations omitted), aff'd on other grounds, 134 F.3d 375 (7th Cir. 1998); EEOC v. IBP, Inc., 824 F. Supp. 147, 150 (C.D. Ill. 1993) ("A prima facie case is established when he or she holds a sincere religious belief. . . .") (citations omitted).
Certainly, Ms. Anderson cannot be arguing that not only do circuits disagree about what constitutes a prima facie case of religious discrimination, but the district courts of the Seventh Circuit also disagree amongst themselves. Of course, such an argument would require Ms. Anderson to take the position that some district courts are not following Seventh Circuit precedent, as all district courts in the Seventh Circuit are required to do, either because they consciously choose not to do so or because they are mistaken with regards to what is required for a plaintiff to make out the first element of a prima facie case of religious discrimination. If Ms. Anderson were making such an argument, her position would be untenable, especially considering that the Seventh Circuit has time and again very clearly articulated the elements of a prima facie case of religious discrimination. See, e.g., United Parcel Serv., 95 F.3d at 317; Wright v. Runyon, 2 F.3d at 216 n. 4 (citation omitted); Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir. 1991) (citations omitted).
As an initial matter, it is necessary to specifically and clearly define Ms. Anderson's religious practice. Cf. Bridgestone/Firestone, Inc., 95 F. Supp.2d at 922 ("In examining the issue of reasonableness of [the employer's] offered accommodations, the court must examine the precise nature of [the employees'] religious beliefs."). Ms. Anderson testified that it is her religious practice to use the phrase "Have a Blessed Day," or some minor variation thereof, from time to time, both in written correspondence and verbal communication. Ms. Anderson admitted that she does not use the phrase in all of her communication or correspondence. For instance, Ms. Anderson testified that sometimes she would be too busy to include the phrase. Ms. Anderson also testified that it is not her religious practice to use the phrase in communication with a particular group, such as co-workers, or with all groups. Indeed, Ms. Anderson testified that if someone objected to her using the phrase in communication with that person, she simply would not use the phrase when she conversed with that person. Therefore, stated simply, Ms. Anderson's religious practice is to tell various people at various times, in written correspondence and verbal communication, to "Have a Blessed Day." There is no discernible pattern to the practice. She does it frequently, but not always. She honors the request of individuals who tell her directly that they prefer not to be addressed in that manner but, other than that, no pattern could be detected which indicated when she would or would not use the phrase. As stated above, personal preferences are not protected under Title VII. See Tiano, 139 F.3d at 682; Vetter, 120 F.3d at 751. In Tiano, the Ninth Circuit held that the plaintiff, Mary Tiano, did not establish a prima facie case of religious discrimination because she could not establish a conflict between her religious belief and her employment duties. See id. at 683. Tiano had sued her employer, Dillard's, alleging that it had violated Title VII when it terminated her because of her pilgrimage to Medjugorje, Yugoslavia. See id. at 681. The court found that although Tiano had a bona fide religious belief that included a need to go on a pilgrimage to Medjugorje, her religious belief did not include a temporal mandate that she had to go to Medjugorje at a specific time. See id. at 683. Rather, the court found that the timing of the trip was a personal preference. See id. at 682. The court cited the following as evidence that Tiano's claim did not include a temporal mandate: (1) "Tiano went to the E.E.O.C. to complain of religious discrimination only after she learned that her ticket for the pilgrimage was not refundable[,]" and (2) the testimony of Tiano's friend and pilgrimage companion, especially testimony that the women had talked about the pilgrimage and "`thought it would be interesting to go on[,]'" strongly suggested that the timing of the trip was a personal preference. Id. Similarly, Ms. Anderson may have difficulty proving that a conflict existed between her practice and USF's employment requirement. From Ms. Anderson's testimony, and stated above, it is clear that she was not required by her practice, as she defined it, to use the phrase at any particular time or with any particular person or group. For instance, Ms. Anderson did not testify that her practice required her to wish a "Blessed Day" to any person with whom she conversed and believed needed spiritual guidance. In fact, Ms. Anderson testified that if a person complained about her use of the phrase, she would agree to no longer use the phrase in correspondence or communication with that person. Ms. Anderson testified only that she used the phrase frequently, not that she was required by her practice to use the phrase at work. It seems that if Ms. Anderson chose not to use the phrase at work that she would not be acting in a manner at all inconsistent with her practice. Rather, it seems that Ms. Anderson's choice to use the phrase at work was a personal preference, i.e., something not required by her religious practice. From this, it may be possible to conclude that Ms. Anderson's use of the phrase at work was a secular preference not entitled to accommodation. Interpreting Ms. Anderson's "bona fide religious practice" in such a manner would eliminate any conflict that may have existed between her practice and her employment requirement.
It is important to note that Ms. Anderson's religious practice was described by her in her testimony before this court at the preliminary injunction hearing. This court has simply restated Ms. Anderson's testimony; it has not made any finding in regards to defining her religious practice.
The court notes that the numerous e-mail exhibits introduced at the preliminary injunction hearing, offered by both Ms. Anderson and USF, may suggest that Ms. Anderson used the phrase at work less often than "most of the time," as she testified.
As stated above, however, it is not necessary for the court to decide whether Ms. Anderson is likely to establish a prima facie case of religious discrimination because, in any event, it is clear that USF's accommodation was reasonable.
D. Reasonable Accommodation
If Ms. Anderson is able to establish a prima facie case, the burden shifts to USF to demonstrate that it reasonably accommodated Ms. Anderson's religious practice or that any accommodation would result in undue hardship to the employer's business. See, e.g., Baz, 782 F.2d at 706; 42 U.S.C. § 2000e(j). USF does not argue that any accommodation of Ms. Anderson's practice would result in undue hardship. Rather, USF maintains that it reasonably accommodated Ms. Anderson's practice. This court agrees.
"A reasonable accommodation of an employee's religion is one that `eliminates the conflict between employment requirements and religious practices[.]'" Wright, 2 F.3d at 217 (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986)). However, it is well-settled that "`Title VII . . . requires only reasonable accommodation, not satisfaction of an employee's every desire.'" Rodriguez v. City of Chicago, 156 F.3d 771, 776 (7th Cir. 1998) (quoting Wright, 2 F.3d at 217) (internal quotation omitted), cert. denied, 525 U.S. 1144 (1999). "The Supreme Court has instructed that `where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee's alternates would result in undue hardship.'" Wright, 2 F.3d at 217 (quoting Ansonia Bd. of Educ., 479 U.S. at 68). Therefore, if USF can demonstrate that it reasonably accommodated Ms. Anderson by eliminating the conflict between her religious practice and USF's employment requirement, it is of no consequence that the accommodation that was made was not of Ms. Anderson's choosing.
The employment requirement for which Ms. Anderson seeks accommodation is clearly stated in USF's June 24, 1999, memorandum to "All USF/ Microsoft Team Mates[.]" (Pl.'s Ex. 7.) That memorandum provides:
USF refers to co-workers, including supervisors, as teammates.
Here at USF we do our best to conduct ourselves in a business like and professional manner at all times.
This includes our manner of speaking verbally, written, or replies via E-mail.
When addressing any of our customers or fellow teammates please refrain from using additional religious, personal or political statements in you're (sic) closing. In all matters of business we must all be on our guard not to offend any one.
In closing I wish to thank all of you for your cooperation. Sincerely,
/s/ Chuck Tolley
(Id.). As clearly stated in this June 24, 1999, memorandum, it was an employment requirement of USF that employees not use religious phrases in written correspondence or verbal communication with customers/vendors, co-workers and supervisors. Thus, Ms. Anderson was prohibited from using the phrase "Have a Blessed Day" in both written correspondence and verbal communication with customers/vendors, co-workers and supervisors.
USF maintains that it accommodated Ms. Anderson by allowing her to use her religious phrase in written correspondence and verbal communication with co-workers and supervisors. The only restriction USF placed on use of the phrase was in regards to written correspondence and verbal communication with outside customers/vendors. Ms. Anderson does not dispute that USF has not enforced the policy with regards to communication with co-workers and supervisors. Rather, she argues that such an accommodation is not reasonable, in part because the written policy still in existence prohibits her from using any religious phrase in any form of communication, written or verbal, with customers/vendors, co-workers and supervisors. In other words, Ms. Anderson argues that although the policy may not be enforced as it is written, it still exits as it is written and, therefore, the accommodation afforded to her — USF's non-enforcement of the policy in some circumstances — is not reasonable.
While the language of the June 24, 2000, memorandum and its intended, or forward reaching effect, was hotly debated, the court concludes that USF does not enforce the policy concerning religious phrases used in verbal communication and written correspondence with co-workers and supervisors. Thus, the court is not required to address whether USF's accommodation regarding intra-office communications is reasonable. It appears that Ms. Anderson is only restricted in her external communications.
In Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995), the Eight Circuit addressed a very similar situation to that in front of this court. In that case, the plaintiff, Christine Wilson, was terminated by her employer for refusing to cover a graphic anti-abortion button during work which had caused adverse reactions amongst her co-workers. See id. at 1338. Wilson argued that she wore the button as a result of her religious vow to be a "living witness" and that covering the button would "break her promise to God to wear the button and be a `living witness.'" Id. 1339. On appeal, she argued that the district court based its finding that her employer reasonably accommodated her religious practice on an incorrect factual predicate: "that her vow did not require her to be a living witness." Id. at 1340. The Eighth Circuit, in considering whether the district erred in determining "that Wilson's vow did not require her to be a living witness[,]" held that the district court's finding was supported by the evidence; specifically, the appellate court found that "the stipulation that Wilson's religious beliefs were sincerely held did not cover the details of her religious vow" and that "there is evidence that Wilson's vow did not always include the requirement that she be a living witness." Id. at 1340-41. The court then considered whether "the district court erred as a matter of law in concluding that U.S. West offered to reasonably accommodate Wilson's religious views." Id. at 1341. The accommodation offered by U.S. West would have allowed Wilson to "(1) wear the button only in her work cubicle, leaving the button in her cubicle when she moved around the office; (2) cover the button while at work; or (3) wear a different button with the same message but without the photograph." Id. at 1339. The court held that the district court did not err in its conclusion. See id. at 1341. The Eighth Circuit reasoned (1) that "Wilson's position would require U.S. West to allow Wilson to impose her beliefs as she chooses[,]" (2) that "U.S. West did not oppose her religious beliefs, but rather, was concerned with the photograph [__] U.S. West did not object to various other religious articles that Wilson had in her work cubicle or to another employee's anti-abortion button[,]" and (3) that U.S. West's accommodation did not require Wilson to abandon her religious beliefs, as she maintained, because her religious vow did not require that she be a living witness and display the pin in every instance. Id. at 1341-42.
There was no dispute that Wilson had made a prima facie case of religious discrimination. See id.
This case is analogous to Wilson. In this case, Ms. Anderson's religious practice does not require her to wish a "Blessed Day" upon everyone with whom she converses, nor in every conversation that she has. Similarly, in Wilson, the district court found that Wilson's religious vow did not require her to be a living witness. In other words, it was not a requirement of Wilson's religious vow that she display the button in a place where everyone with whom she came in contact would see it. As a result of Wilson's religious vow being that which it was, the Eighth Circuit affirmed the district court's holding that U.S. West's accommodation was reasonable. Here, USF has accommodated Ms. Anderson by permitting her to use her religious phrase in verbal communication and written correspondence with co-workers and supervisors. USF has prevented Ms. Anderson from using her religious phrase only in communications with customers/vendors. Such an accommodation does not require Ms. Anderson to breach her religious vow. Also, similar to Wilson, if USF were to accede to Ms. Anderson's demand, USF would be required to allow Ms. Anderson to impose her religious beliefs on its customers/vendors. And as the Eighth Circuit acknowledged, "Title VII does not require an employer to allow an employee to impose [her] religious views on others." Id. at 1342; see also Chalmers v. Tulon Co. of Richmond, 101 F.3d at 1021 (acknowledging that Title VII does not require an employer to permit an employee to impose religious view on others) (citing Wilson, 58 F.3d at 1342). And finally, like in Wilson, the court notes that USF has not objected to the various religious objects that Ms. Anderson displays in her work cubicle. In fact, USF has on at least one occasion encouraged Ms. Anderson's religious activity. It is undisputed that USF requested Ms. Anderson to say a prayer, broadcast over the company loudspeaker, prior to a company sponsored event.
Defining Ms. Anderson's religious practice in the manner in which she has described it, this court finds that USF's accommodation was reasonable. By permitting Ms. Anderson to use her religious phrase in written correspondence and verbal communication with co-workers and supervisors, USF did all that was required of it under Title VII. USF's reasonable accommodation eliminated the conflict between Ms. Anderson's religious practice and USF's employment requirement that religious phrases not be used in verbal or written communication.
Ms. Anderson suggests that USF did not do enough to accommodate her religious practice. Ms. Anderson seems to suggest that she should be permitted to use the phrase in any communication with whomever she chooses, whenever she chooses. However, that is clearly not what is required under the law. Under Title VII, an employer is not required to make a total accommodation, but only one that is reasonable. It is true, as Ms. Anderson suggests, that to be reasonable an accommodation must eliminate the conflict between an employer's employment requirements and an employee's religious practice. As stated above, USF's accommodation has eliminated that conflict.
III. Conclusion
"If a plaintiff fails to meet just one of the prerequisites for a preliminary injunction, the injunction must be denied." Cox, 868 F.2d at 223. In this case, Ms. Anderson did not prove a reasonable likelihood of success on the merits of her Title VII claim. Because Ms. Anderson is unable to demonstrate a reasonable likelihood of success on the merits, it is not necessary to examine the other elements required for preliminary injunctive relief.
Note that this court is not in the business of expressing its opinion about what an employer should do when confronted with a situation such as the one Ms. Anderson presents. Rather, the business of this court is to ensure that whatever action an employer does take, or for that matter whatever action an employer does not take, conforms to the requirements of Title VII. If an employer's actions do all that Title VII requires, it is improper for this court to critique those actions. See generally Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396, 399 (7th Cir. Oct. 2000) ("We often say that we do not, and cannot, impose our own ideas of prudent business management on employers; we can assess only the question whether an employer has taken an action for a forbidden reason.") (citation omitted); Wright, 2 F.3d at 218 ("Perhaps there were other steps that could have been taken here that would have allowed Wright to continue working at the USPS without infringing his religious convictions. We believe, however, that the USPS has done all that Title VII requires and, therefore, that it is entitled to summary judgment.").
For the foregoing reasons, Elizabeth L. Anderson's motion for preliminary injunctive relief is DENIED.