Reversing summary judgment for a county employer on the religious discrimination claim of an employee who was fired after she refused to work on a Sunday so she could attend the ground-breaking of a new church, a divided panel of the Fifth Circuit found that the employer and the lower court improperly focused on the nature of the church activity rather than the sincerity of the employee’s belief, in her “own scheme of things,” as to her “religious need to attend a special service at church on Sunday.” Judge Smith dissented, reasoning that the court should also consider whether the belief was “religious” in nature or “merely a personal preference or a secular social or economic philosophy.” Summary judgment for the county was affirmed on the employee’s retaliation claim (Davis v Fort Bend County, August 26, 2014, Prado, E).

The county employee was as a desktop support supervisor of 15 information technology (IT) technicians. In April 2010, she filed a complaint with the HR department alleging that the IT director had been subjecting her to constant sexual harassment and assaults. The county placed her on FMLA leave during its investigation, which substantiated her claims and led to the director’s resignation. The employee’s supervisor, who was the IT director’s personal friend, allegedly began retaliating against her when she returned from leave. According to the employee, he effectively demoted her by reducing the number of her direct reports to four; removed her from projects she previously managed; superseded her authority by giving assigning different tasks to her staff; removed her administrative rights from the computer server; and assigned her tasks that similarly situated colleagues were not required to perform.

Termination. Starting in March 2011, the county prepared to install computers and network components into a new justice building. The employee’s team was to help with testing to make sure all computers were set up properly. Installation was scheduled for the weekend of July 4. In June, the employee told her supervisor she could not work that Sunday morning due to a prior “religious commitment” and she arranged for a replacement. She testified that she was “more than willing to come in after church services.” The supervisor did not approve, stating it “would be grounds for a write-up or termination.” After she attended her church event rather than working, the employee was fired. She filed suit alleging religious discrimination, retaliation, and intentional infliction of emotional distress. The district court granted summary judgment for the county and the employee appealed only as to her Title VII claims.

“Sincere” religious belief. Reversing as to the religious discrimination claim, the Fifth Circuit found triable issues of fact on the employee’s prima facie case. At issue was whether her observance of her church’s July 3rd event was pursuant to her bona fide religious beliefs. The court noted that its inquiry was limited to focusing on her motivation; whether her beliefs were, in her “own scheme of things, religious.” In this regard, a belief is “religious” if it is a “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by . . . God.” Whether the belief is a “true” religious tenet is “not open to question.”

The employee asserted that her bona fide belief that she was religiously compelled to attend the event was supported by her testimony that she is a devout member of the Church Without Walls. She testified that she attends at least two services every weekend, volunteers for the church, and “needed” to be there Sunday July 3. The county (and the district court) averred that “being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.” The lower court found that the employee’s absence from work, for purposes of breaking ground for a new church and feeding the community, was due to “personal commitment, not religious conviction.”

Rejecting this analysis, the appeals court noted that neither the county nor the lower court addressed whether the employee’s religious belief was sincere. Instead, both improperly focused on the nature of the activity itself. A showing of sincerity did not require proof that the church event was itself a religious tenet but only that the employee sincerely believed it to be religious in her own scheme of things. With that in mind, the employee’s testimony about her own sincere belief regarding her religious need to attend a special church service on a Sunday sufficiently evidenced a genuine dispute of fact on whether she held a bona fide religious belief.

Undue hardship? The appeals court also found questions of fact on the county’s defense that it could not reasonably accommodate the employee’s religious observance without undue hardship. According to the employee, she only asked to be absent in the morning and promised to report to work after the church event. To the court, not only was this absence minimal under Title VII, but the employee arranged for a substitute for the hours she would be absent. She further asserted that the county allowed another employee to take time off that same weekend to attend a parade.

While the county argued that requiring one employee to substitute for another was an undue hardship, the appeals court noted that the substitute in this case volunteered. The cases upon which the county relied did not involve a ready and willing volunteer and thus did not necessarily impose the same hardship as requiring an employee to substitute. The fact that the employee lacked authority to schedule her own substitute did not change that analysis.

The appeals court also rejected the lower court’s finding that the evidence only showed a neutral policy denying all requests for time off. That finding was based on an affidavit from another supervisor asserting that the county denied his request to let his employees attend church services. However, noted the appeals court, the correct comparison was not between the employee and others in her same protected class (those with religious observances) but was between her and those outside the class. Here, the employee testified that the county allowed another employee to take time off for a July Fourth parade. For these reasons, summary judgment was inappropriate on the religious discrimination claim.

Retaliation. However, summary judgment was affirmed on the Title VII retaliation claim. The employee pointed to several actions that she claimed were adverse, including subjecting her daily meetings with upper management; superseding her authority by directly assigning tasks to her staff; removing her administrative rights from the computer; reducing her direct reports; and terminating her. Simply listing the employment actions was not enough to meet her summary judgment burden because she made no effort to show the actions were “materially” adverse. For example, administrative rights on the computer may have been necessary for the employee to do her job, or they may have been a mere convenience. The alleged meetings with management, direct assignments to her staff, and reduction in her staff also lacked context. She therefore failed to raise a genuine dispute as to the pre-termination actions.

With respect to employee’s termination, there was no dispute this was an adverse action. However, she failed to present evidence that the county’s nonretaliatory reason for terminating her (her failure to report to work) was pretext for retaliation. Instead, she argued only that the county was pretext for religious discrimination, which was irrelevant to her retaliation claim.

Dissent. Judge Smith dissented with respect to the discrimination claim, finding that the majority erred in limiting its inquiry to the sincerity of the employee’s alleged religious belief rather than also considering whether the belief was “religious” in nature or “merely a personal preference or a secular social or economic philosophy.” In the dissent’s view, the district court correctly found that the employee’s failure to appear for work was motivated by her personal commitment, and not by a religious belief protected by Title VII. He also opined that the majority mistakenly decided that accommodating her belief did not constitute an undue hardship.
By Lorene D. Park, J.D.