Opinion
8:01-CV-473
September 19, 2002
MEMORANDUM AND ORDER
I. Introduction
Before me is the defendant's motion for summary judgment, Filing No. 26, which is supported by briefs and indices of evidence, Filing Nos. 27, 28, and 38. The plaintiff submitted a responsive brief and filed an index of evidence, Filing No. 35. Having carefully reviewed the record, the parties' submissions, and the applicable law, I now find that the defendant's motion for summary judgment should be granted.
II. Legal Standard
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). If the defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987). Once the defendant meets its initial burden of showing there is no genuine issue of material fact, the plaintiff may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998).
In cases alleging employment discrimination, summary judgment is often an inappropriate remedy since discrimination is difficult to prove by direct evidence. "Summary judgment should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion. All evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the non-moving party." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991). Since in this case only one conclusion is possible as a matter of law, summary judgment is appropriate.
III. Facts
In June 1994, the defendant, Midwest Express Airlines (Midwest Express), hired the plaintiff, Susan Rose (Rose), as a flight attendant. Midwest Express terminated Rose's employment in September 1996 for violations of company policies, but rehired her on a provisional basis in January 1997. In returning to work, Rose acknowledged that her past performance record was not erased, and that any further disciplinary action could result in termination.
Rose had several disciplinary problems after her rehiring, but Midwest Express did not finally decide to terminate her until April 2000 when a co-worker reported having observed Rose twice sleeping while on duty during flights. The "Rules of Conduct" in the Midwest Express Flight Attendant Manual make "sleeping or giving the appearance of sleeping while on duty" an infraction, the punishment for which could include termination. Midwest Express also cited Rose's poor work performance and her intimidation of and retaliation against the co-worker who had reported Rose for sleeping or appearing to sleep as additional reasons for her termination.
Rose admits that she cannot recall what she was doing during the April 7 flight when, instead of helping with a seatbelt check during turbulence, she was allegedly sleeping in a passenger seat in the rear of the plane's cabin; she acknowledges, however, that she was not praying. As to the April 14 flight, Rose told her supervisors during an investigative meeting on April 21 that she had not been sleeping during the thirty-minute taxi prior to takeoff, her head bobbing up and down, but perhaps had been instead in the "brace" position or looking at her shoes. In a written statement submitted to her supervisors on April 24, Rose offered other possible explanations for what her co-worker had observed on the April 14 flight: she might have been stretching her back or she might have been praying — the first time Rose offered this latter explanation. Midwest Express terminated Rose on April 26, 2000.
Rose maintains that a person in the brace position preparing for take-off or landing could easily be mistaken for a person sleeping, since the person's head faces downward and is tucked against the upper chest.
The Nebraska Equal Opportunity Commission issued its determination of no reasonable cause on June 15, 2001.
Her complaint in this court alleges that her termination was unlawful religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. Ann. § 48-1101 et seq. (Michie 1995). "In construing the NFEPA, the Nebraska courts have looked to federal decisions, because the NFEPA is patterned after Title VII." Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir. 2002). The analysis of Rose's employment discrimination claim is thus the same for both Title VII and the NFEPA.
IV. Discussion
Title VII. Despite the voluminous evidentiary record submitted in connection with this motion, only one factual issue appears to exist in this case: whether Rose was sleeping or gave the appearance of sleeping during a flight on April 14, 2000, or whether she was, as she claims in this suit, praying. If Rose was indeed praying rather than sleeping or appearing to sleep, the legal question becomes whether her termination was illegal. Under Title VII, an employer may not discharge an employee because of the employee's "religion." 42 U.S.C. § 2000e-2(a)(1). Religion encompasses "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000(e)(j). An employer is expected to accommodate an employee's religion unless the employer "demonstrates that [it] 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." Id.
If the complaint is to be read as alleging that Midwest Express subjected Rose to disparate treatment because of her religion, I find that Rose has not established that Midwest Express held a bias against her religion that resulted in her being treated differently than any other Midwest Express employee. In a disparate treatment case, a plaintiff must show she is a member of a protected class and then compare her treatment to that of a similarly situated member of a non-protected class, thereby establishing that she was treated less favorably than others because of her religious beliefs. See Mann v. Franklin, 7 F.3d 1365, 1370 (8th Cir. 1993).
Rose is a Christian, but so are most Midwest Express employees. Rose acknowledges that the Midwest Express supervisors who made the decision to terminate her were also "praying" Christians; one even attended a church that Rose herself occasionally attends. Rose also admits that Midwest Express demonstrated no anti-Christian bias or practices and that Midwest Express had never told her or other employees that they could not pray. She claims that Midwest Express was aware that she prayed while on duty during flights, but acknowledges that Midwest Express had never prohibited the practice. Finally, another Midwest Express employee was fired the same day as Rose and for the same offense, sleeping or appearing to sleep during a flight — an offense that had nothing to do with the other employee's religion. Given these facts, Rose cannot make out a prima facie discrimination case based on disparate treatment imposed because of her religion or her religious practice of praying while on duty.
The only other way Rose could show that her termination was based on religious discrimination is to allege that Midwest Express refused to accommodate her religious beliefs or practices. To prove that an employer failed to accommodate an employee's religious beliefs or practices, the employee must present evidence that "(1) [s]he has a bona fide belief that compliance with an employment requirement is contrary to [her] religious faith; (2) [s]he has informed [her] employer about the conflict; and (3) [s]he was discharged because of [her] refusal to comply with the employment requirement." Johnson v. Angelica Uniform Group, Inc., 762 F.2d 671, 673 (8th Cir. 1985). An employer is never required, however, to "accommodate a `purely personal preference.'" Vetter v. Farmland Indus., Inc., 120 F.3d 749, 751 (8th Cir. 1997) (quoting Brown v. General Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979)).
Midwest Express contends that Rose cannot demonstrate the first prong of this test, a bona fide religious belief that conflicts with the company rule forbidding employees from sleeping or appearing to sleep during flights. Rose offered no evidence that her religion required her to pray in a specific manner, at specific times, at specific places, or in specific circumstances. Indeed, Rose admitted that the manner, timing, and place of her prayers were entirely within her discretion: she could pray with her eyes open, standing up, moving about, doing her other duties. While the sincerity of Rose's religious beliefs with regard to prayer is not in question, I nevertheless find that those beliefs do not conflict with Midwest Express's rule on sleeping or appearing to sleep during flights.
Midwest Express also argues that Rose cannot establish the second prong of the Vetter test because she did not inform Midwest Express of her beliefs nor ask Midwest Express to accommodate her praying or manner of praying. Further, even granting Rose a strong religious belief in prayer, Midwest Express argues that it cannot accommodate a single manner of prayer that violates the no sleeping rule — a rule Rose admits to knowing about before she sought to explain away her appearance of sleeping as prayer. In response, Rose appears to argue that since other Midwest Express employees, including her supervisor, knew that she prayed during takeoffs, landings, and in-flight, Midwest Express implicitly consented to and therefore had to accommodate her praying at whatever time and in whatever manner she chose.
Rose's argument strains the notion of both notice and accommodation. First, Rose has not proved that she told Midwest Express of her need to pray — in any manner — before she was reported for sleeping or appearing to sleep. See Johnson v. Angelica Uniform Group, Inc., 762 F.2d at 673 (no prima facie case where the plaintiff did not mention to employer need for accommodation to attend religious services before her termination for absenteeism). Midwest Express acknowledges that Rose at one point had asked for Sundays off, but that request is not the same as a request to be allowed to engage in eyes-closed, head-bowed prayer during flights.
Second, even if Rose had notified Midwest Express of her religious beliefs, Midwest Express could hardly have accommodated Rose on the no-sleeping rule. Midwest Express imposed the no-sleeping rule to comply with federal aviation regulations and for the safety of passengers and flight crew. Thus, forcing Midwest Express to accommodate Rose's chosen manner of praying could not only violate federal law but also jeopardize the safety of everyone aboard a flight to which Rose was assigned if she were "praying" with bowed head and closed eyes when an emergency arose during flight. The no-sleep rule plainly did not prevent Rose from praying. Indeed, as Midwest Express points out, the rule is facially neutral and has nothing whatever to do with praying or with religion. Rose was free to pray at any time during a flight — so long as she did not do so in a manner that gave an appearance of sleeping or that violated some other company rule or policy.
Finally, Midwest Express argues that Rose cannot meet the third prong of the Vetter test because she cannot establish that her termination was a result of her religious beliefs or practices. I agree. When Midwest Express rehired Rose in 1996, it placed her on notice that her past poor performance record was not erased and that further disciplinary infractions could result in termination. Midwest Express chose to not fire Rose for several disciplinary matters that arose after her rehiring. But when a co-worker reported Rose for sleeping or appearing to sleep in April 2000 and Rose then intimidated and retaliated against that co-worker, Midwest Express was free to accept the co-worker's version of events over Rose's version and to fire Rose.
Assuming that Midwest Express knew about Rose's praying during flights, which Rose claims it did, it is significant that Midwest Express took no disciplinary action against her on that basis between her rehiring in 1996 and her termination in April 2000.
This court's inquiry must stop at Midwest Express's decision to fire Rose, since Title VII employment discrimination laws "have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995). Rose's termination had nothing to do with Midwest Express discriminating against her religion or her religious practices. Her termination was based on her violation of a facially neutral no-sleeping rule, her retaliation against a co-worker, and her poor work performance.
State Law Claims. The NFEPA specifically requires employment discrimination claims to be brought "within three hundred days after the occurrence of the alleged unlawful employment practice." Neb. Rev. Stat. Ann. 48-1118(2) (Michie 1995). Here, the alleged discrimination — Rose's termination — occurred in April 2000, but Rose did not file this suit until September 12, 2001, well past the 300 days allowed by section 48-1118(2).
Although both parties' briefs discuss Neb. Rev. Stat. § 20-148, Rose's state law claim was made under the NFEPA rather than under section 20-148. See Filing No. 1, Complaint at 3, ¶¶ 13, 15. Section 20-148 is a general statute enacted "to provide an immediate and expeditious civil remedy to any person in Nebraska whose constitutional or statutory rights have been violated." Adkins v. Burlington Northern Santa Fe R.R. Co., 615 N.W.2d 469, 472 (Neb. 2000). Section 20-148 creates no substantive right of action separate from a party's NFEPA claim. "The right to sue under this section must flow from violation of another right." Metz v. ACI Worldwide, Inc., 2002 WL 2005719, *2 (D.Neb. 2002).
Further, the NEOC issued its determination of no reasonable cause on June 15, 2001, three months before Rose filed this suit. An employee with a claim before the NEOC may "at any stage of the proceedings prior to dismissal" file a court action. Neb. Rev. Stat. Ann. § 48-1119(4) (Michie 1995) (emphasis added). A determination of no reasonable cause constitutes a dismissal in accordance with section 48-1119(4). See Metz v. ACI Worldwide, Inc., 2002 WL 2005719, *2 (D.Neb. 2002). Although Rose requests some sort of equitable tolling, I find that Rose's failure to bring her NFEPA suit before the NEOC's determination of no reasonable cause dooms her NFEPA claims.
IT IS THEREFORE ORDERED:
1. The defendant's motion for summary judgment, Filing No. 26, is granted; and
2. Judgment for the defendant will be entered by separate order.
Pursuant to the Memorandum and Order entered on this date, Filing No. ___, judgment is entered in favor of the defendant and against the plaintiff.