Opinion
No. 1:02-cv-01888-DFH-TAB.
June 17, 2004
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Fatou Tyson, a Muslim woman, worked as a Patient Service Assistant at Methodist Hospital, which is operated by defendant Clarian Heath Partners. Clarian fired Tyson while she was still a probationary employee in her first six months of employment. Tyson has sued Clarian under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq, claiming that it failed to reasonably accommodate her religion, that it discharged her on the basis of her religion, and that it maintained a hostile work environment in which Tyson was harassed on the basis of her religion and national origin. Clarian has moved for summary judgment on all claims, arguing that Tyson's discharge was unrelated to her religious beliefs or practices. According to Clarian, Tyson was discharged simply because she had accumulated three reprimands within her probationary period of employment.
Both sides agree that Tyson's discharge was based at least in part on an incident in which Tyson was found using the bathroom shower in an empty patient room. Tyson claims she was performing ablution, a practice of the Islamic faith involving the ceremonial washing of the feet, hands and forehead. For the purposes of this motion, Clarian does not specifically dispute Tyson's account, but argues only that, regardless of Tyson's activities in the shower, her presence there violated hospital policy. Tyson also alleges that her supervisor, Arturo Rios, made a series of comments to her disparaging her religion and national origin.
For the reasons discussed below, Clarian's motion is granted in part and denied in part. On her claims for failure to accommodate and for religiously motivated discharge, Tyson has come forward with sufficient evidence to reach a jury. Factual issues material to these overlapping claims remain in dispute and must be decided by a jury, not by the court on a motion for summary judgment. Clarian's motion is granted, however, with regard to Tyson's hostile work environment claim. The harassing conduct that Tyson has alleged is not sufficiently severe or pervasive to support a Title VII hostile environment claim.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only genuine disputes over "material facts" can prevent a grant of summary judgment, and "material facts" are defined as those that might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists only if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).As required when deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn from it, in the light reasonably most favorable to Tyson, the nonmoving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The court should neither "look the other way" to ignore genuine issues of material fact, nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988).
Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes.
As in any case, a court weighing a summary judgment motion in an employment case must take care not to invade the province of the trier of fact. Employment cases are governed by the same rules that govern summary judgment in other cases. They are equally amenable to summary disposition if there is no genuine dispute as to material facts. Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1031 (7th Cir. 1998), citing Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).
Facts for Summary Judgment
The following account of the relevant facts is not necessarily accurate, but it is the version upon which defendant has chosen to argue the law — the plaintiff's version of the evidence, with the benefit of all conflicts in the evidence, and all reasonable and favorable inferences from the evidence. Some facts from the defendant's evidence are undisputed, though, and are treated as such for purposes of defendant's motion.Clarian hired Tyson on January 21, 2002 as a Personal Service Assistant or "PSA." As a PSA, Tyson was responsible for cleaning patient rooms and common areas on Floor 3S where new mothers stayed during post-partum recovery. Tyson Dep. at 18. During the first six months of employment, Clarian employees are on probationary status. Probationary employees are not afforded the same rights under Clarian's employment policies that permanent employees enjoy. Notably, Clarian's policy allows it to discharge a probationary employee at any time if her performance is deemed substandard. Tyson Dep. Ex. 4.
Tyson is a Muslim. Her religion calls for her to pray five times a day. The times at which she was required to pray varied somewhat over the course of her employment, but generally three of her daily prayer sessions coincided with her work shift at the hospital. Before she prayed, Tyson engaged in a religious cleaning ritual known as ablution. Typically, ablution takes two to three minutes and involves cleaning the feet, hands and forehead. Tyson Dep. at 77-79.
At all relevant times, Arturo Rios served as Tyson's immediate supervisor. According to Tyson, Rios began making insulting and offensive comments to Tyson as soon as he learned that she was a Muslim. The specific comments attributed to Rios by Tyson are discussed in detail below. In general, Tyson claims that Rios mocked her religion, questioned why a married Muslim woman was still working, and warned her that no one liked Muslims "over here." Id. at 98-110. Tyson, who was born in Senegal, also alleges that Rios made several comments disparaging her national origin.
Tyson received three formal reprimands during the course of her employment with Clarian. On April 24, 2002, Tyson's team leader found her studying in the nurse's area while she was still clocked in to work. Id. at 39-40. The incident was reported to Rios, who issued a corrective action report on April 25, 2002. Pl. Ex. 4.
On July 9, 2002, between 10:45 p.m. and 11:00 p.m., Tyson was finishing up her shift. She was cleaning the bathroom in an empty patient room. After she finished, she decided to perform ablution in preparation for her prayers. Tyson Dep. at 115. She took off her work jacket, shoes and socks and put them over the bathroom trash can. She then moved a chair near the shower so that she could wash her feet. Id. at 119. As she was cleaning herself, Tyson heard a voice calling to her from outside the bathroom. She came out of the bathroom and saw Rios. He asked her what she had been doing and she replied that she had been performing ablution. Id. at 116. Rios told her that she had not been performing ablution and that he had seen her taking a shower. Id.
After the incident, Rios reported his account to Lorraine Rockingham, the Shift Coordinator. Rockingham told Rios to report the incident to Steve Broad. Broad advised Rios to report the incident to Laura Otten, Clarian's Employee Relations Consultant.
Before Rios could report the incident to Otten, he had another altercation with Tyson. According to Tyson, on July 10, 2002, Rios approached her and demanded in an insolent and rude manner that she immediately clean a particular room. Tyson responded that she would get to the room soon and that "when I give it to you, I don't want to see your face anymore until next month." Id. at 47. Tyson received an official reprimand for insubordination on July 11, 2002. On July 16, 2002, Tyson requested a transfer away from Rios' department. Id. at 138.
Sometime around July 13, 2002, Rios met with Laura Otten and reported the July 9 shower incident as well as the two other reprimands that Tyson had received. Otten recommended that Tyson be terminated; Broad and Rios concurred. That decision, in the form of Rios' report of the shower incident, was presented to Tyson on July 18, 2002. Pl. Ex. 6. Other facts are noted below as needed, keeping in mind the standard that applies to a motion for summary judgment.
Discussion
Tyson asserts all of her claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Under Title VII it is unlawful for an employer to discriminate against an employee because of the employee's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2.I. Failure to Accommodate
Title VII defines "religion" to include:
all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.42 U.S.C. § 2000e(j). This definition imposes on employers a duty to provide a reasonable accommodation for an employee's religious beliefs and observances unless the employer can show it is unable to do so without undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69 (1986); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1574 (7th Cir. 1997).
To establish a prima facie case of religious discrimination by failure to accommodate, a plaintiff must show that: (1) she follows a bona fide religious practice that conflicts with an employment requirement; (2) she brought the practice to the employer's attention; and (3) the religious practice was the basis for an adverse employment action. EEOC v. United Parcel Service, 94 F.3d 314, 317-18 (7th Cir. 1996), citing Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir. 1993). The employer may respond to the prima facie case by proving either that it offered a reasonable accommodation that the employee did not accept, or that it was unable to provide a reasonable accommodation without undue hardship. See EEOC v. United Parcel Service, 94 F.3d at 318, citing Wright, 2 F.3d at 217. The employer bears the burden of proof on these issues. EEOC v. Ilona of Hungary, 108 F.3d at 1576. An employee is not required to propose a specific accommodation. Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978).
Title VII is the statutory source for Tyson's claim of religiously motivated discharge (discussed below) and her claim for failure to accommodate. At the prima facie stage, however, the two claims have different focal points. The discharge inquiry focuses on the extent to which Tyson's religious beliefs and affiliation motivated Clarian's decision to terminate her employment. The accommodation test focuses on the extent to which Tyson's external religious practices influenced the adverse employment action.
Two of Tyson's religious practices are at issue: the requirement that she pray several times a day and the requirement that she perform ablution before prayer. As to the prayer issue, the parties agree on the essential facts, which show that Clarian accommodated Tyson's religious practice of prayer. Approximately a week into her employment with Clarian, Tyson told Rios that she was a Muslim and would need to pray as many as three times during her work shift. Rios said that was "okay," and he showed her the hospital's two nondenominational chapels where she could pray. Tyson Dep. at 82. Previously, Tyson had learned that other Muslims who worked at Methodist used the basement of the hospital for prayer. Tyson indicated to Rios that she would prefer to pray in the basement. He replied that this was "fine" and that she should just inform him when she went to pray. Id. Although Tyson eventually moved her place of prayer from the basement to a room on Floor 3S, she was able to continue praying throughout the course of her employment with Clarian. Id. at 89.
Tyson testified that she was forced to change the location where she prayed because Rios complained about her coming back late from the basement. She seems to suggest that this fact alone establishes Clarian's failure to accommodate her religious practices. There are several flaws in this theory. First, even if Rios complained about Tyson returning late from her prayers in the basement, there is no indication that she was ever disciplined on this ground or that this complaint was the basis for an adverse employment action. None of the reasons given for Tyson's termination are even tangentially related to complaints concerning lateness.
Second, regardless of where Tyson ultimately chose to pray, the undisputed evidence shows that Clarian offered and Tyson accepted a reasonable accommodation that enabled her to pursue her practice of prayer throughout the course of her employment. A reasonable accommodation of an employee's religion is one that "eliminates the conflict between employment requirements and religious practices." Philbrook, 479 U.S. at 70; Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir. 1998). "Title VII . . . requires only `reasonable accommodation,' not satisfaction of an employee's every desire." Wright, 2 F.3d at 217. Clarian provided Tyson with several spaces in the hospital where she could pray and allowed her to do so during work hours while she was on duty. According to the evidence, the only limit Clarian placed on Tyson's religious practice was the requirement that she notify Rios when she went to pray. As a matter of law, Clarian provided reasonable accommodation for prayer.
The same cannot be said, however, concerning Tyson's practice of ablution. At issue is the third element of the prima facie test — whether Tyson has come forward with sufficient evidence to suggest that her practice of ablution was the basis for an adverse personnel action.
A defendant-employer in a Title VII accommodation case will often concede that the religious practice was the basis for the adverse employment action, but Clarian argues that Tyson's termination had nothing to do with any religious practice. According to Clarian, Tyson was fired because she accumulated three relatively serious disciplinary violations within the probationary period of her employment. However, one of the violations was the disputed shower incident where Tyson has alleged that she was performing ablution in the shower of an empty patient room. Tyson contends that, to the extent Clarian based its decision to terminate her on this incident, she was in effect discharged for engaging in a religious practice, specifically ablution.
At the summary judgment stage, the court must assume that Tyson was performing ablution when she was discovered in the shower. Clarian's position is that regardless of Tyson's activities in the shower, it was a serious breach of hospital policy for her to be using a patient room shower without permission for any reason.
Even accepting Clarian's argument that all three of Tyson's disciplinary violations factored into her termination, a jury could easily find that the shower incident played a prominent, even catalytic, role in Clarian's decision to fire her. Clarian's own evidence states that it was the combination of all three violations that led to the firing. A reasonable jury could find that the other two violations alone would not have caused Clarian to fire Tyson. Viewing the facts in the light most favorable to Tyson, her religious practice of ablution was at least a factor, and more likely the decisive factor, in Clarian's decision to fire her. Tyson has met her burden of establishing a prima facie case that Clarian failed to accommodate her religious practices.
Clarian does not specifically address the issue of ablution in its response to Tyson's accommodation claim. Clarian seems to view the Islamic practices of prayer and ablution as one religious practice that it reasonably accommodated by offering to let Tyson pray in the hospital's non-denominational chapels and basement. It is true that Tyson performed ablution in the basement and public restrooms of the hospital, but the record also contains evidence indicating that these venues were ill-suited for her needs. See Tyson Dep. at 92 (testifying that the sinks in public restrooms were too high for her to be able to wash her feet). The record is sparse regarding the precise practical requirements of ablution. Without knowing more, the court will not speculate on whether Tyson's faith would permit her to perform ablution regularly in one of the places that Clarian made available to her for prayer. With the minimal record on this point, the court does not find as a matter of law that Clarian provided Tyson with a reasonable accommodation for her religious practice of ablution. In this respect, summary judgment on Tyson's accommodation claim is denied.
II. Discharge Based on Religion
Title VII also prohibits employers from making employment decisions on the basis of employees' religious beliefs. A Title VII plaintiff can prove this type of discrimination in several ways. The first is to present direct evidence of discriminatory intent. The second, because of the difficulty in directly proving discrimination, is to rely on circumstantial evidence by using the indirect, burden-shifting procedure set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir. 1996). A plaintiff may also use what the Seventh Circuit has described as a "mosaic" of circumstantial evidence — such as comments by supervisors, suspicious timing, inconsistent explanations or behavior, and so on — that can support a reasonable inference of discrimination. See, e.g., Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (reversing summary judgment for employer; "remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria will suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality"); Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (circumstantial evidence — like suspicious timing, ambiguous statements oral or written, behavior — is admissible to provide a basis for drawing an inference of intentional discrimination).
Tyson's complaint also asserts claims of unlawful discharge based on race and national origin. Tyson has not addressed these claims in her brief, and Clarian is entitled to summary judgment on them.
To establish a prima facie case of racial discrimination under the McDonnell Douglas test, Tyson must come forward with evidence that: (1) she was a member of a protected class; (2) she was performing her job satisfactorily; (3) she was the subject of an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably. Brummett v. Lee Enterprises, Inc., 284 F.3d 742, 744 (7th Cir. 2002). Once she comes forward with evidence sufficient to support findings on these elements of a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its action. Williams v. Seniff, 342 F.3d 774, 788 (7th Cir. 2003).
Tyson concedes that she does not possess direct evidence of intentional discrimination. Pl. Br. at 18. Instead, Tyson employs an approach that borrows from both the McDonnell Douglas test and the "mosaic" line of cases. There is nothing improper about this approach. The Seventh Circuit has repeatedly emphasized that the McDonnell Douglas method is "essentially a heuristic device, not a rule of law." Sattar v. Motorola, Inc., 138 F.3d 1164, 1169 (7th Cir. 1998), citing Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997). The ultimate question is whether the employer would have taken the adverse action against the plaintiff if she had not been a member of a protected class. See Leffel v. Valley Financial Servs., 113 F.3d 787, 794 (7th Cir. 1997). "The plaintiff's initial burden is to come forward with evidence that gives rise to an inference that the as-yet unexplained employment action in question was taken for a forbidden reason." Sattar, 138 F.3d at 1169. Regardless of the method Tyson uses to prove her case, the burden of persuasion is hers. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
There is no dispute that Tyson is a Muslim and that Clarian (through Rios) was aware of that fact. What is disputed is whether Clarian's decision to terminate Tyson's employment was motivated in any part by her religious beliefs. To support her contention that it was, Tyson relies on three distinct strands of circumstantial evidence.
The first strand of evidence involves the treatment of similarly situated non-Muslim employees at Clarian. Tyson concedes that she engaged in the conduct for which she was reprimanded, but she argues that Clarian applied its rules in a discriminatory manner. In other words, though she concedes that she could have been fired because of her disciplinary record, she contends that the disciplinary record is itself a result of religious discrimination against her. Under this theory in a case alleging discrimination in discipline, the second and fourth prongs of the McDonnell Douglas test essentially merge into one. The decisive question becomes whether Tyson has evidence that she was disciplined more harshly than similarly situated non-Muslim employees. See Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329-30 (7th Cir. 2002); Curry v. Menard, Inc., 270 F.3d 473, 477-78 (7th Cir. 2001).
A "similarly situated" employee is someone who is "directly comparable to [the plaintiff] in all material respects." Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). "In determining whether two employees are similarly situated a court must look at all relevant factors, the number of which depends on the context of the case." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). In disciplinary cases such as this one, a plaintiff must show that she is similarly situated with respect to "performance, qualifications and conduct." Id. "This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Id. at 618, citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Tyson therefore must show "substantial similarity" between herself and non-Muslim Clarian employees who were not disciplined. Radue, 219 F.3d at 618, citing Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Attacking the basis for her first disciplinary action — in which she was reprimanded for studying in a nurse's area when she was clocked in and supposed to be cleaning rooms on another floor — Tyson points out that Clarian supervisors, including Rios, routinely allowed other employees to take smoke breaks and other unscheduled breaks as long as they notified their supervisors first. Tyson Dep. at 43-44; Otten Dep. at 24. Tyson also asserts that PSAs supervised by Rios were not required to notify him before they left the floor to get supplies. Tyson Dep. at 43. Tyson's argument in this regard is weakened by the undisputed facts that she did not notify Rios before she left her floor and that her initial reason for leaving was not to get supplies but to study. Id. at 41-43.
Tyson also contends that the reprimand that she received for using the shower in a patient room was unjustified and was motivated by religious animosity. Tyson testified that nurses at the hospital often used the bathrooms in empty patient rooms. Id. at 94.
Clarian responds by arguing that nurses are not similarly situated to PSAs. In some respects, such as educational requirements, for example, nurses and PSAs would not be similarly situated, but whether such differences are relevant to this particular work rule is not at all clear. Further factual development on this point is necessary. A plaintiff must compare herself to other employees who are similarly situated; they need not be identically situated. Whether nurses and PSAs are similarly situated with respect to this particular work rule presents, on this record, a judgment call that cannot be resolved as a matter of law.
Tyson's second strand of evidence is that Rios' frequent comments regarding her religious beliefs support an inference that the decisions to discipline and fire her were motivated at least in part by her religion. In her deposition, Tyson recounted several of these objectionable remarks. For instance, soon after Tyson informed Rios that she was a Muslim and would need to pray during the day, Rios asked to see her prayer rug. Tyson Dep. at 98. He also reportedly asked her what the Islamic prophet Mohammed had done for her such that she felt the need to pray for him. Id. Rios was laughing when he made these comments and Tyson felt that he was insulting Mohammed and "putting down [her] religion like it was nothing." Id. at 99-102.
Rios denies making most of these remarks and entirely denies the insulting and objectionable connotation that Tyson has attached to comments that he might have made. In deciding a motion for summary judgment, of course, such denials are irrelevant.
On another occasion, Tyson encountered Rios as she was about to go on break. She informed Rios that she was going to use the break to pray. In response, Rios warned Tyson to "be careful, because you guys, nobody like[s] you guys over here." Id. 103-104. Tyson understood Rios to be referring to Muslims when he said "you guys."
Another incident allegedly occurred when Tyson returned to work after her marriage. When Rios learned that Tyson had married, he asked her why she was still coming to work. Id. at 108. Tyson's impression was that Rios believed that married Muslim women did not work.
The final incident occurred when Rios discovered Tyson in the shower of a patient room and asked her what she was doing. Tyson replied that she had been performing ablution. According to Tyson, Rios responded: "it is just you Muslims that do that. I can have sex right now in five minutes and pray." Rios also told Tyson: "no Mohammed over here anymore." Id. at 117. At her deposition, Tyson did not elaborate on what she interpreted Rios' comments to mean.
Rios later told Laura Otten, a Clarian Employee Relations Consultant, that he had said "Maybe you should leave Muhammed out of it," meaning that Tyson's religion had nothing to do with the issue of whether it was appropriate to use the shower in a patient room. Otten Dep. at 24; Pl. Ex. 9.
Assuming, as the court must, that Rios made the comments that Tyson attributes to him, some of those comments were at the least insensitive and inappropriate. Inappropriateness, however, is not the touchstone of Title VII claims — even those that are brought under a "hostile work environment" theory of liability. Where the theory is discriminatory discharge, a supervisor's comments must possess at least some link to the adverse employment action. "Evidence of discriminatory motives must, it is true, have some relationship with the employment decision in question; inappropriate but isolated comments that amount to no more than `stray remarks' in the workplace will not do." Venters, 123 F.3d at 973, citing Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989).
Taking Tyson's testimony as true and drawing every reasonable inference in her favor, the comments allegedly made by Rios lend some support to her religious discrimination claim. On a general level, a reasonable jury could find that Rios' alleged comments demonstrate some degree of hostility toward Tyson and her religion, which could reasonably be expected to manifest itself in his employment decisions. Additionally, his comment expressing surprise that a married Muslim woman would continue to work could be interpreted as evidence that Rios, at some level, was considering Tyson's religion in relation to her employment. A reasonable jury could infer that Tyson's religion was a factor in Rios' negative evaluation of her.
The third strand of evidence is the shower incident itself. Clarian does not deny that it based its decision to terminate Tyson's employment in part on the incident in which she was discovered by Rios using the shower in a patient room. Upon being confronted by Rios in the shower, Tyson explained that she was performing ablution, a religious practice required by the Islamic faith. Several days after the incident, she was fired, and the court must assume that the incident played a key role in her firing. Clarian argues that the religious nature of Tyson's behavior had nothing to do with her termination. Viewing the evidence in the light most favorable to Tyson, however, this same sequence of events could give rise to the inference that Tyson's practice of ablution fanned Rios' religious animosity, which in turn factored into her termination. Tyson has succeeded in putting forth a prima facie case that her religion was a motivating factor in Clarian's decision to fire her.
Accordingly, the burden shifts to Clarian to articulate a legitimate, nondiscriminatory reason for Tyson's termination. It is undisputed that Tyson was reprimanded three times within her first six months of employment. Clarian argues that these disciplinary violations were sufficient justification for Tyson's discharge.
Clarian's justification falters, however, because to the extent that the justification is based on the shower incident, the court at this stage cannot assume that it is nondiscriminatory. As discussed in regard to Tyson's accommodation claim, Title VII prohibits discrimination in several forms, one of which is the failure of an employer to reasonably accommodate an employee's legitimate religious practices. Tyson claims that she was performing ablution in the shower when she was discovered by Rios, and the court must accept that account at this stage of the case. As discussed, she has raised a triable issue as to whether Clarian unlawfully discriminated against her based on its refusal to accommodate her religious practice of ablution. It follows that Clarian may not, at this stage of the case, rely on the shower incident as a nondiscriminatory reason for Tyson's termination.
The court is aware that Tyson received two reprimands that were unrelated to the shower incident and her religious practices. Clarian, however, has not argued, let alone shown beyond reasonable dispute, that these two infractions — talking back to a supervisor and taking an unauthorized break — would have led it to fire Tyson, without more. Though the corrective action report regarding the shower incident was chronologically only Tyson's second reprimand, it was the one that officially notified her that her employment had been terminated. See Pl. Ex. 6, July 18, 2002 Performance Correction Documentation. The evidence before the court indicates that Clarian's reason for terminating Tyson hinged in large part on the shower incident. Because a reasonable jury could find that Tyson's reprimand stemming from this incident effectively amounted to religious discrimination, Clarian may not rely upon it at the summary judgment stage to rebut Tyson's prima facie case. Accordingly, the court denies Clarian's motion for summary judgment on Tyson's claim that she was fired because of her religion.
III. Harassment — Hostile Work Environment
Tyson also claims that she was subjected to harassment based on her religion and national origin. While many harassment cases brought under Title VII focus on claims of sexual harassment, courts have recognized that claims of religious harassment are also actionable under Title VII. Venters, 123 F.3d at 975 (reversing summary judgment for employer on claim of religious harassment).
Harassment is actionable under Title VII if it is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). In determining whether the conduct created a hostile environment, courts must consider several factors, including the conduct's frequency, severity, whether it was physically threatening or humiliating, or just a mere offensive utterance, and whether it created an abusive working environment. See Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 668 (7th Cir. 2001); Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999).
To be actionable, the behavior must be offensive both objectively and subjectively: a reasonable person would find it hostile or offensive, and the individual employee must have found it offensive. Faragher, 524 U.S. at 787; Dey v. Colt Const. and Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994).
Tyson cites seven incidents of harassing conduct on the part of Rios, many of which the court has already touched upon in the discussion of Tyson's religiously motivated discharge claim. To review, Tyson alleges that Rios made comments: asking to see her pray rug; asking what the Islamic prophet Mohammed had ever done for her; cautioning her as she went to pray that "nobody like[s] you guys over here"; asking her why she was still coming to work after she was married; and responding to finding her in the shower by saying "No Mohammed over here." In addition, Tyson claims that Rios made harassing comments to her with regard to her national origin. For instance, when Tyson informed Rios that she was from Senegal, he allegedly expressed mock surprise that she knew how to speak English. Tyson Dep. at 180. On another occasion, Tyson mentioned to Rios that she had a brother who had received a grant to study for his Ph.D. Rios reportedly responded, "how you guys so lucky? You come all the way from Africa and get free school." Id. at 184.
Clarian argues that these comments are not so objectively offensive and severe as to create an unlawfully hostile work environment. The court agrees, even assuming the comments and questions were accompanied by sneers and disrespect. Title VII is not a "`general civility code' designed to purge the workplace of all boorish or even all harassing conduct." Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001), citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). As the Seventh Circuit has repeatedly stated, isolated or occasional inappropriate comments or vulgar remarks, or a workplace that is merely unpleasant are insufficient to establish an objectively offensive environment. See Minor v. Ivy Tech State College, 174 F.3d 855, 858 (7th Cir. 1999).
Taking Tyson's allegations as true, the record demonstrates that Rios asked several questions about her religion and national origin, which at worst amounted to inappropriate teasing. Rios' comment that "nobody like[s] you guys over here" is too isolated to be actionable. Simply put, the evidence submitted by Tyson does not describe a work environment that rises to the level of a legally actionable hostile environment. See Filipovic v. K R Express Systems, Inc., 176 F.3d 390, 393 (7th Cir. 1999) (affirming grant of summary judgment on national origin harassment claim; evidence that supervisors called plaintiff "Russian d*** head," "dirty Commie," "f***ing foreigner," and commented to him that "it seems to me all Serbians are barbarians" was insufficient to show a hostile work environment) ; Hafford v. Seidner, 183 F.3d 506, 514 (6th Cir. 1999) (affirming grant of summary judgment on religious harassment claim; evidence that supervisors accused plaintiff of preparing for a "holy war," mocked the Muslim greeting, publically accused plaintiff of preaching and praying with inmates, and commented that the Muslim religion taught its followers to hate white people was insufficient to show hostile work environment); Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 466 (7th Cir. 1998) (affirming grant of summary judgment on religious and national origin harassment claim; evidence that various company employees told plaintiff to "go back East," commented that "you Middle Eastern people are a pain in the butt," and told other employees that he did not trust plaintiff or "the yellow race" and that they should not trust him because he was a Buddhist was insufficient to show a hostile work environment).
Defendant's motion for summary judgment must therefore be granted with respect to Tyson's hostile work environment claim.
Conclusion
For the foregoing reasons, Clarian's motion for summary judgment is denied with respect to Tyson's claims for failure to accommodate her religious practice of ablution and for religiously motivated discharge and granted with respect to her hostile work environment claim. Trial remains set for August 16, 2004.
So ordered.