Opinion
Civ. No. 02-4232 (JNE/JGL)
February 18, 2004
Joel L. Oster, Esq., Liberty Counsel, for Plaintiff Donald Grant
Paul J. Zech, Esq., Felhaber, Larson, Fenlon, Vogt, P.A., for Defendant Fairview Hospital and Healthcare Services
ORDER
This is a religious discrimination case brought by Donald Grant against his former employer, Fairview Hospital and Healthcare Services (Fairview), under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (2000). This case is before the Court on Fairview's motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants the motion.
I. BACKGROUND
Fairview owns several medical facilities in the Minneapolis/Saint Paul metropolitan area, including the Fairview Riverside Women's Clinic (Riverside). Grant worked as an ultrasound technician at Riverside from July 2000 to May 2002. Grant has a religious belief that requires him to counsel women out of having abortions. In his Complaint and Affidavit, Grant explains that "once he finds out a person is contemplating an abortion, he must try to dissuade the person from having an abortion." (Compl. ¶ 20; Grant Aff. ¶ 4 (emphasis added).) In other documents, he describes the manifestation of his belief differently, asserting that he has to act on his belief only when a woman "is going to have" an abortion. (See RFA No. 16; Pl's Opp'n at 1.) At the motion hearing, Grant's counsel explained that Grant's belief is invoked only when a woman is going to have an abortion and Grant is the last person who can try to stop the woman from having an abortion, not when a woman is merely thinking about having an abortion. Grant does not explain how he determines whether a woman is at the contemplating-stage or the going-to-have stage. Nonetheless, there is no dispute that there are circumstances in which Grant's belief requires him to act in hopes of dissuading women from having abortions.
On April 30, 2002, Grant provided pastoral care to a Jane Doe at Riverside. The facts surrounding the incident are as follows. After learning that Doe was considering an abortion and had failed to appear for a scheduled ultrasound, a Riverside midwife and a triage nurse scheduled Grant to perform an emergency ultrasound on Doe to determine the dates of Doe's pregnancy. Because an ultrasound to determine the gestational age of a fetus is not normally an emergency, the triage nurse informed Grant that the ultrasound was an emergency because Doe was considering an abortion. Grant agreed to perform the ultrasound. During the exam, Grant prayed with Doe, encouraged her not to have an abortion, asked if he could give her telephone number to his pastor, and gave his pastor's telephone number to her. Grant asserts that Doe welcomed his counseling.
Upon learning of the counseling incident, Doe's midwife contacted Fairview's administration. On May 2, 2002, the administration held a meeting with Grant to discuss the incident. At the meeting, the administration explained to Grant that providing pastoral counseling to patients was beyond the scope of his professional duties as an ultrasound technician. Grant responded by telling the administration about his religious belief. The administration agreed that Grant should not have to perform ultrasound exams on women contemplating having abortions. The parties did not discuss the specifics of how this accommodation would be accomplished. Instead, the administration turned to the issue of how to deal with impromptu patient disclosure. At the motion hearing, Fairview's counsel explained that the administration told Grant that if a patient happened to disclose to him during an examination that she was considering having an abortion-information that Fairview presumably did not know-Grant could leave the room and terminate his examination of that patient; however, Grant could not proselytize or provide pastoral counseling to that patient. In response, Grant repeated that his belief required him to try to dissuade a woman from having an abortion, even if that meant losing his job. As a result of his statements, Fairview discharged Grant for his unwillingness to agree to cease from providing pastoral care to patients in the future.
Grant then filed a charge with the Equal Employment Opportunity Commission, alleging religious discrimination. He received his Notice of Right to Sue in August 2002. In November 2002, Grant filed suit in this Court with a one-count Complaint, alleging that Fairview had discriminated against him on the basis of his religion when it fired him for his refusal not to provide pastoral care to patients in the future. Fairview now moves for summary judgment, contending that there is no genuine issue of material fact that it offered Grant a reasonable accommodation of his religious beliefs.
Although in their pleadings and briefs both parties discussed the facts surrounding Grant's act of counseling Doe, both parties agreed at the motion hearing that Grant was fired for his refusal not to counsel patients in the future, not because he counseled Doe. Therefore, the Court need not address any legal issues related to Grant's counseling of Doe.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
1. Religious Discrimination
Title VII prohibits an employer from discharging any individual, or otherwise discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion," and it requires an employer to "reasonably accommodate" an employee's religious observance or practice unless doing so creates an "undue burden" on the employer. 42 U.S.C. § 2000e), 2000e-2(a)(1). To establish a prima facie case of religious discrimination for failure to accommodate under Title VII, an employee must show: (1) the employee has a bona fide religious belief that conflicts with an employment requirement; (2) the employee informed the employer of this belief; and (3) the employee was disciplined for failing to comply with the conflicting employment requirement. Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60, 66 (1986). Once the plaintiff makes a prima facie case, the burden shifts to the employer to show either that it made a reasonable accommodation or that it could not make a reasonable accommodation without suffering undue hardship. Id. at 68-69.
The parties agree that Grant established his prima facie case. The parties disagree about whether Fairview offered Grant a reasonable accommodation. Neither party has conducted discovery on the issue of undue burden, and both parties agree that the issue of whether accommodating Grant's religious belief imposes an undue burden on Fairview is not before the Court.
2. Reasonable Accommodation
The term "reasonably accommodate" as used in 42 U.S.C. § 2000e(j) does not have a precise meaning. See, e.g., United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir. 1976). The statute merely provides that an employer violates Title VII unless it "demonstrates that [it] is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). In determining whether Fairview reasonably accommodated Grant's religious belief, the Court is bound by United States Supreme Court and Eighth Circuit precedent. See Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). The Supreme Court has explained that the statute "provides no guidance for determining the degree of accommodation that is required of any employer." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
The Supreme Court has also held that the Title VII inquiry ends once an employer offers an employee a reasonable accommodation of his or her religious belief. Philbrook, 479 U.S. at 69. After offering a reasonable accommodation, an employer is not required to show that an employee's alternative recommendations would result in undue hardship to the employer. Id. at 68. Relying on this portion of Philbrook, Fairview asserts that it is entitled to summary judgment because it offered a reasonable accommodation to Grant. The accommodation Fairview offered was as follows: Grant would not have to perform an ultrasound exam on any patient contemplating an abortion; if, however, a patient spontaneously disclosed to Grant that she was considering having an abortion, he could end his examination of that patient and walk out of the room, but he could not proselytize or provide pastoral care to that patient. Once it offered this accommodation, Fairview contends that the statutory inquiry ended, and there is no need to reach the issue of undue burden.
In response, Grant relies on other portions of Philhrook and a Sixth Circuit case, Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987), to support his argument that summary judgment is inappropriate. In Philbrook, the Supreme Court addressed the issue of whether a school board's policy of requiring a high school teacher to take unpaid leave for religious observances when paid leave was available was a reasonable accommodation of a high school teacher's religious beliefs. Id. at 70. The Supreme Court remanded the issue for further factual findings. Id. at 71. Before doing so, the Court noted that use of unpaid leave "eliminates the conflict between employment requirements and religious practices" but that the school board's policy of using unpaid leave was not reasonable "when paid leave is available for all purposes except religious ones." Id. at 70-71. In Smith, the plaintiff had a religious belief that it was both a sin to work on Sundays and to ask someone else to work for him on Sundays. Smith, 827 F.2d at 1083. In discussing whether the employer's proffered accommodation was reasonable, the Sixth Circuit noted that the reasonableness of an accommodation cannot be determined in a vacuum and instead must be considered on a case-by-case basis. Id. at 1085. The Sixth Circuit also explained the employer's burden by noting that "[i]f the employer's efforts fail to eliminate the employee's religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee's religious beliefs without incurring undue hardship." Id. Grant relies on these portions of Philhrook and Smith to suggest that a reasonable accommodation must eliminate the conflict between an employee's belief and the employment requirement.
A requirement that an accommodation, to be "reasonable," must eliminate the conflict does not appear in Philbrook, and the Eighth Circuit has not read such a requirement into the holding of that case. In Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995), the Eighth Circuit explained that Title VII requires an employer "to reasonably accommodate the religious beliefs or practices of [its] employees unless doing so would cause the employer undue hardship." Wilson, 58 F.3d at 1340; see also Jones v. TEK Indus., Inc., 319 F.3d 355, 359-60 (8th Cir. 2003); Phillips v. Collings, 256 F.3d 843, 850 (8th Cir. 2001); Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000). In Wilson, the Eighth Circuit also offered insight into what constitutes a reasonable accommodation. The employee in Wilson had a religious belief that required her to wear an anti-abortion button that showed a color photograph of an eighteen to twenty-week old fetus. Wilson, 58 F.3d at 1339. The button caused disruptions in the workplace, and the employee's co-workers complained about the button. Id. In response, the employer offered the employee three accommodations: (1) wear the button only in her cubicle; (2) cover the button while at work; or (3) wear a different button with the same message but without the photograph. Id. The district court concluded that requiring the employee to cover her button at work was a reasonable accommodation because it allowed the employee to wear the button while also avoiding office turmoil. Id. at 1340. The Eighth Circuit affirmed the district court's conclusion under a clearly erroneous standard, noting that the employer was not required to make the co-workers ignore the button because doing so would be "antithetical to the concept of reasonable accommodation" and that the employer's proposal allowed the employee "to comply with her vow to wear the button and respected the desire of co-workers not to look at the button." Id. at 1341-42. The court stated: "We reiterate that Title VII does not require an employer to allow an employee to impose his religious views on others. The employer is only required to reasonably accommodate an employee's religious views." Id. at 1342.
In essence, Grant offers four arguments to show that Fairview's accommodation was not reasonable. First, as stated above, Grant asserts that the accommodation was not reasonable because it did not eliminate the conflict. Because neither the United States Supreme Court nor the Eighth Circuit has adopted such a test, this argument is unpersuasive. Second, Grant seeks to avoid the use of the word "impose" in Wilson by explaining that his religious belief requires him to "share," rather than "impose," his beliefs with any woman who is going to have an abortion. The Court finds that this is a distinction without a difference in the context of Fairview's directive. Fairview employed Grant as an ultrasound technician. As an ultrasound technician, Grant did not have a primary or preexisting patient/heath care provider relationship with the patients he examined, and Fairview directed him to avoid proselytizing or providing pastoral counseling to them. The reasonableness of the hospital's directive does not turn on the meaning of "share" rather than "impose." Third, Grant argues that the accommodation was not reasonable because Fairview offered it in haste after a thirty-minute meeting. Grant does not point to any case law to support his argument, and the Court did not find any authority to support the proposition that a reasonable accommodation can only be arrived at after a specified amount of time. Therefore, this argument is also unconvincing.
Finally, Grant claims that Fairview could easily and reasonably accommodate Grant by making changes in the schedule and the scheduling forms so that Grant would never perform examinations on patients contemplating abortions. In advancing this argument, Grant fails to acknowledge that there may be times when a patient discloses to Grant for the first time that she is contemplating an abortion and, as with Doe, there may be times when Grant learns from other hospital employees that a patient is contemplating an abortion. If this occurs, Fairview would not have the opportunity to make changes in the schedule to ensure that Grant would not encounter the patient, and Grant would not agree to leave the room and terminate his examination of any patient who disclosed to Grant that she was contemplating an abortion. Grant admits that patients occasionally disclose to him information about their pregnancies. ( See Phan Aff., Ex. A at No. 2.) Grant also states that, in his 16 years of practice as an ultrasound technician, no patient has disclosed to him that she was considering an abortion. Fairview cannot control what a patient says during an ultrasound exam. Grant is asking Fairview to accept the risk that his religious belief may require him to provide unauthorized pastoral care to patients in the future. Fairview is under no obligation to accept such a risk with respect to third parties to whom it owes a duty of care. Accordingly, the Court finds Grant's fourth argument unpersuasive.
Grant has not presented any other evidence to show that Fairview's accommodation was unreasonable. The statute and case law require Fairview to "reasonably accommodate" Grant, not "accommodate" Grant. The use of the word "reasonably" is not accidental, and the Court must consider it in determining whether there is a genuine issue of material fact concerning whether Fairview offered Grant a reasonable accommodation. Fairview agreed to accommodate Grant insofar as it agreed that he should not have to perform ultrasound examinations on any patient it knew was contemplating having an abortion. Fairview also agreed to allow Grant to leave any examination in which a woman disclosed to him that she was contemplating having an abortion, but it did not agree to allow Grant to provide pastoral care to any patient. Title VII does not require employers to allow employees to impose their religious views on others. Wilson, 58 F.3d 1342. Given the circumstances of this case, the Court concludes that there is no genuine issue of material fact that Fairview offered Grant a reasonable accommodation. Accordingly, the Court grants Fairview's motion.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Fairview's Motion for Summary Judgment [Docket No. 11] is GRANTED.
2. Grant's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY.