No. 19-____

IIn the Supreme Court of the United States __________

JASON SMALL, PETITIONER v.

MEMPHIS LIGHT, GAS & WATER, RESPONDENT __________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT __________

PETITION FOR WRIT OF CERTIORARI __________

MICHAEL W. MCCONNELL G. EDWARD POWELL III Wilson Sonsini Goodrich & Rosati, PC 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 JAMES A. SONNE Stanford Law School Religious Liberty Clinic 559 Nathan Abbott Way Stanford, CA 94305 (650) 724-1900

STEFFEN N. JOHNSON Counsel of Record PAUL N. HAROLD Wilson Sonsini Goodrich & Rosati, PC 1700 K Street, NW Washington, DC 20006 (202) 973-8800 sjohnson@wsgr.com MAUREEN T. HOLLAND YVETTE KIRK Holland & Associates, PC 1429 Madison Ave. Memphis, TN 38104 (901) 278-8120

Counsel for Petitioner

QUESTION PRESENTED In Title VII of the Civil Rights Act of 1964, Con-

gress generally prohibited private employers from dis-criminating against an individual “because of such in-dividual’s * * * religion.” 42 U.S.C. §§ 2000e–2(a)(1) and (2). In 1972, Congress amended the statute to specify that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasona-bly accommodate to an employee’s or prospective em-ployee’s religious observance or practice without un-due hardship on the conduct of the employer’s busi-ness.” Id. § 2000e(j).

The question presented is: Whether Trans World Airlines, Inc. v. Hardison,

432 U.S. 63, 84 (1977), which stated that employers suffer an “undue hardship” in accommodating an em-ployee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets § 2000e(j) and should be overruled.

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PARTIES TO THE PROCEEDINGS Petitioner, Jason Small, was the plaintiff in the

district court and the appellant in the court of appeals. Respondent, Memphis Light, Gas & Water, was

the defendant in the district court and the appellee in the court of appeals.

RELATED PROCEEDINGS United States District Court (W.D. Tenn.): Small v. Memphis Light Gas & Water, No. 2:17-cv-

02118 (Sept. 11, 2018) United States Court of Appeals (6th Cir.): Small v. Memphis Light, Gas & Water, No. 19-

5710 (Mar. 12, 2020)

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TABLE OF CONTENTS Page

QUESTION PRESENTED.......................................... i PARTIES TO THE PROCEEDINGS ......................... ii RELATED PROCEEDINGS ...................................... ii APPENDIX TABLE OF CONTENTS ...................... vii TABLE OF AUTHORITIES .................................... viii INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 2

JURISDICTION ......................................................... 2

STATUTORY PROVISIONS INVOLVED ................ 2

STATEMENT ............................................................. 3

A. The religious accommodation requirement of Title VII of the Civil Rights Act ...................................................... 3

B. This Court’s decisions interpreting Title VII’s religious accommodation requirement ................................................... 4

C. Jason Small’s employment with Memphis Light, Gas & Water ....................... 6

D. The district court’s decision ........................ 11

E. The court of appeals’ decision ..................... 12

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REASONS FOR GRANTING THE PETITION ...... 14

I. This Court should revisit Hardison’s conclusion that employers suffer “undue hardship” whenever accommodating employees’ faith imposes “more than a de minimis cost.” ..................................................... 16

A. As the United States has recognized, Hardison’s atextual reasoning cannot be reconciled with the text, structure, history, or purpose of Title VII. .................. 16

B. Hardison’s de minimis standard thwarts thousands of claims, and precludes many others from being filed. .... 22

C. Hardison has especially pernicious effects on those, including religious minorities, whom Title VII was designed to protect. ..................................... 25

D. The “undue hardship” standard is applied elsewhere without difficulty. ......... 27

E. Stare decisis does not warrant adhering to Hardison. ................................................. 28

II. This case is an excellent vehicle to address the question presented. ..................................... 30

A. These facts squarely present the question whether Hardison should be overruled, and reversal would likely change the outcome on remand. ................. 30

B. Small’s claim involves the most common conflict between employees’ religious practices and work-related obligations. ...... 32

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C. Small raised the undue hardship issue below and both lower courts addressed it ................................................................... 33

CONCLUSION ......................................................... 36

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APPENDIX TABLE OF CONTENTS Page

Appendix A: Court of Appeals’ Decision, dated March 12, 2020 .......................................... 1a

Appendix B: District Court Decision, dated September 11, 2018 ................................. 15a

Appendix C: Service Dispatch Rules, dated April 1, 2015 (D.I. 49-8) ........................... 44a

Appendix D: Excerpts from Appellant’s Opening Sixth Circuit Brief, dated October 21, 2019...... 55a

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TABLE OF AUTHORITIES Page(s)

Cases: Ansonia Board of Education v. Philbrook,

479 U.S. 60 (1986) .................................................. 6 Baker v. Home Depot,

445 F.3d 541 (2d Cir. 2006) ................................... 6 Balint v. Carson City,

180 F.3d 1047 (9th Cir. 1999) ................................ 6 Beadle v. City of Tampa,

42 F.3d 633 (11th Cir. 1995) .................................. 6 Bostock v. Clayton County,

No. 17-1618 (U.S. June 15, 2020) .................... 1, 16 Carlson v. Green,

446 U.S. 14 (1980) ................................................ 36 Chassen v. Fid. Nat’l Fin., Inc.,

836 F.3d 291 (3d Cir. 2016) ................................. 36 Cloutier v. Costco Wholesale Corp.,

390 F.3d 126 (1st Cir. 2004) .................................. 6 Cooper v. Oak Rubber Co.,

15 F.3d 1375 (6th Cir. 1994) ............................ 6, 35 Corley v. United States,

556 U.S. 303 (2009) .............................................. 19 Corporation of Presiding Bishop v. Amos,

483 U.S. 327 (1987) ........................................ 21, 29 Cutter v. Wilkinson,

544 U.S. 709 (2005) ........................................ 21, 29

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Davis v. Fort Bend Cty., 765 F.3d 480 (5th Cir. 2014) ............................ 6, 33

Dewey v. Reynolds Metal Co., 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided Court, 402 U.S. 689 (1971) ....................... 3

Dykzeul v. Charter Commc’ns Inc., 2019 WL 8198218 (C.D. Cal. Nov. 18, 2019) ....... 27

EEOC v. Abercrombie & Fitch Stores Inc., 135 S. Ct. 2028 (2015) .......................... 4, 15, 19, 29

EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) .................................. 6

EEOC v. Geo Grp., Inc., 616 F.3d 265 (3d Cir. 2010) ................................... 6

EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) .......................... 6, 33

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) .............................................. 21

Farah v. A–1 Careers, 2013 WL 6095118 (D. Kan. Nov. 20, 2013) ......... 26

Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019) .......................................... 29

In re Frushour, 433 F.3d 393 (4th Cir. 2005) ................................ 18

Gamble v. United States, 139 S. Ct. 1960 (2019) .......................................... 28

George v. Home Depot, 51 Fed. App’x. 482 (5th Cir. 2002) ....................... 33

Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011) ............................ 6, 33

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Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) ........................................ 21, 29

In re Rifino, 245 F.3d 1083 (9th Cir. 2001) .............................. 19

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995) ........................................ 33, 36

Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978) .............................................. 28

Patterson v. Walgreen Co., 140 S. Ct. 685 (2020) 1, 5, 15–17, 21, 25, 27–30, 32

Patterson v. Walgreen Co., 727 Fed. App’x. 581 (11th Cir. 2018) ................... 33

Pearson v. Callahan, 555 U.S. 223 (2009) .............................................. 28

Perrin v. United States, 444 U.S. 37 (1979) ................................................ 29

Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014) .............................................. 29

Schlitt v. Abercrombie & Fitch Stores, Inc., 2016 WL 2902233 (N.D. Cal. May 13, 2016) ....... 27

Stone v. INS, 514 U.S. 386 (1995) .............................................. 20

Tabura v. Kellogg USA, 880 F.3d 544 (10th Cir. 2018) .......................... 6, 33

Tepper v. Potter, 505 F.3d 508 (6th Cir. 2007) ................................ 35

In re Thomas, 931 F.3d 449 (5th Cir. 2019) ................................ 18

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Tolan v. Cotton, 572 U.S. 650 (2014) ................................................ 7

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ........................................ passim

US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) .............................................. 27

Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 (1991) ...................................... 30, 36

Virts v. Consol. Freightways Corp. of Del., 285 F.3d 508 (6th Cir. 2002) ................................ 35

Yott v. N. Am. Rockwell Corp., 602 F.2d 904 (9th Cir. 1979) ................................ 23

Constitutional Provisions, Statutes, Regulations, and Rules:

29 C.F.R.: § 1605.1 (1967) ................................................. 3, 20 § 1605.1 (1968) ................................................. 3, 20 § 1605.2(d)(1) ........................................................ 32

11 U.S.C. § 523(a)(8) ................................................. 18 28 U.S.C.:

§ 1254(1) ................................................................. 2 § 1869(j) ................................................................ 18 § 207(r)(3) ............................................................. 18

38 U.S.C. § 4303(15) .................................................. 18 42 U.S.C.:

§ 2000e–2(a)(1) ................................................... 2, 3 § 2000e–2(h) ................................................. 4, 7, 31 § 2000e(b) ............................................................. 22

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§ 2000e(j) ...................................................... 2, 4, 19 § 12111(10) ..................................................... 18, 27 § 12111(10)(B)(i) ................................................... 18 § 12111(10)(B)(ii) .................................................. 18 § 12111(10)(B)(iii) ................................................ 18 § 12112(b)(5)(A) .................................................... 18

Cal. Gov. Code: § 12926(u) ............................................................. 27 § 12940(l) .............................................................. 27

Fed. R. App. P. 28(a)(8)(A) ........................................ 35 U.S. Const. amend. I ..................................... 14, 21, 29 Other Authorities: American Heritage Dictionary of the English

Language (1969) ................................................... 17 Rachel M. Birnbach, Love Thy Neighbor: Should

Religious Accommodations That Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hardship on the Employer under Title VII, 78 Fordham L. Rev. 1331 (2009) .............................. 24

Black’s Law Dictionary ............................................. 17 118 Cong. Rec. (1972) ............................ 3–4, 20, 33–34

EEOC, Bases by Issue FY 2010–FY 2019 (2019) ...... 22 EEOC Guidance, Section 12: Religious

Discrimination (2008) .......................................... 22 EEOC, Religion-Based Charges (Charges filed with

EEOC) FY 1997–FY 2019 (2019) ......................... 22 EEOC, What You Should Know: Workplace Religious

Accommodation (2014) ......................................... 26

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Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII, 76 Tex. L. Rev. 317 (1997) . 24

Debbie N. Kaminer, Title VII’s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575 (2000) ............... 23

Arthur Larson, Discrimination as a Field of Law, 18 Washburn L.J. 413 (1979) ................................... 17

William P. Marshall et al., Religion in the Workplace, 4 Emp. Rts. & Emp. Pol’y J. 87 (2000) ................ 24

Memorial of Jesus’ Death (2020) ......................... 10, 11 Memphis Light, Gas and Water, About/How MLGW

is Governed ............................................................ 7 Matthew P. Mooney, Between a Stone and a Hard

Place: How the Hajj Can Restore the Reasonable Accommodation to Title VII, 62 Duke L.J. 1029 (2013) ..................................... 24

Random House Dictionary of the English Language (1968) .................................................................... 17

U.S. Department of Justice, Combating Religious Discrimination Today: Final Report (July 2016) 23

Webster’s New Collegiate Dictionary (1971) ............. 17 Webster’s New Twentieth Century Dictionary of the

English Language (2d ed. 1975) .......................... 16 Peter Zablotsky, After the Fall: The Employer’s Duty

to Accommodate Religious Practices under Title VII after Ansonia Board of Education v. Philbrook, 50 U. Pitt. L. Rev. 513 (1989) ............ 24

INTRODUCTION This case presents an exceptionally important and

recurring question: whether Title VII of the Civil Rights Act of 1964 requires employers to make more than de minimis efforts to accommodate their employ-ees’ religious practices. Taken at its word, Title VII requires accommodation of religious employees when-ever doing so would not cause “undue hardship.” But in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), this Court, contrary to plain English and the statute’s structure, history and purpose, read “un-due hardship” to mean anything “more than a de min-imis cost.” That decision “effectively nullif[ied]” the statute, and “[a]ll Americans” have since been “poorer” —especially the “thousands” forced to choose between their “livelihood” and their “conscience.” Id. at 89, 96–97 (Marshall, J., dissenting).

Three current Justices, the United States, and commentators across the spectrum have called for the Court to “consider whether Hardison’s interpretation should be overruled.” Patterson v. Walgreen Co., 140 S. Ct. 685, 686 (2020) (Alito, J., concurring in the de-nial of certiorari). As the three Justices recognized, Hardison’s de minimis standard is not “the most likely interpretation” of “‘undue hardship.’” Ibid. The United States was more blunt: Hardison is “incorrect.” U.S. Invitation Br. 19, Patterson v. Walgreen Co., No. 18–349 (2018) (“U.S. Patterson Invitation Br.”).

Nor is this error inconsequential: “[F]ew pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” and Title VII affects myriad reli-gious liberty claims annually. Bostock v. Clayton County, No. 17-1618, slip op. at 2 (U.S. June 15, 2020). “The American story is one of religious pluralism,”

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and the Founders “wrote that story into our Constitu-tion.” App. 14a (Thapar J., concurring). Yet Hardison “thwarted” Congress’s bipartisan efforts to honor that tradition, and the ruling continues to harm “religious minorities.” Ibid. This Court should right that wrong, and this case presents an ideal opportunity to do so.

OPINIONS BELOW The Sixth Circuit’s opinion (App. 1a–14a) is re-

ported at 952 F.3d 821. The district court’s opinion (App. 15a–43a) is unreported.

JURISDICTION The Sixth Circuit issued its judgment on March 12,

2020. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED 42 U.S.C. § 2000e–2(a)(1) provides in relevant

part: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual * * * because of such individual’s * * * religion. 42 U.S.C. § 2000e(j) defines “religion”: The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to rea-sonably accommodate to an employee’s or prospec-tive employee’s religious observance or practice without undue hardship on the conduct of the em-ployer’s business.

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STATEMENT A. The religious accommodation require-

ment of Title VII of the Civil Rights Act Under Title VII, employers may not “discriminate

against any individual with respect to his compensa-tion, terms, conditions, or privileges of employment, because of such individual’s * * * religion.” 42 U.S.C. § 2000e–2(a)(1). As originally enacted, Title VII did not explicitly require employers to accommodate em-ployees’ religious practices. Guidelines issued by the Equal Employment Opportunity Commission (EEOC) in 1966, however, read the statute to require reason-able accommodation of religious practices absent “se-rious inconvenience.” 29 C.F.R. § 1605.1 (1967); see 118 Cong. Rec. 705–731 (1972).

A year later, in response to numerous complaints related to Sabbath observance and religious holidays, the EEOC stiffened its Guidelines to require accom-modation absent “undue hardship.” 29 C.F.R. § 1605.1 (1968); see David M. Ackerman, Cong. Re-search Serv., No. 77–163A, Religious Discrimination in Employment: An Analysis of Trans World Airlines v. Hardison 5 (1977). But the courts “question[ed] whether the guidelines were consistent with Title VII.” Hardison, 432 U.S. at 89 (Marshall, J., dissenting). Most notably, in Dewey v. Reynolds Metal Co., the Sixth Circuit rejected a claim based on the denial of an employee’s request for accommodation of his objec-tion to working overtime on Sundays. 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided Court, 402 U.S. 689 (1971).

In 1972, in response to Dewey, Senator Jennings Randolph introduced legislation “tracking” the EEOC regulation and amending Title VII to require religious

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accommodation. Hardison, 432 U.S. at 89 (Marshall, J., dissenting). Randolph, a Seventh Day Baptist, ex-plained that some employers discriminated against those “whose religious practices rigidly require[d] them to abstain from work * * * on particular days.” 118 Cong. Rec. 705. As a result of economic “pressures” on adherents, some Sabbath-observing faiths suffered “dwindling” membership. Id. at 706. The amendment was thus designed to protect both “religious freedom” and “the[] opportunity to earn a livelihood.” Ibid.

As amended, Title VII requires employers to “rea-sonably accommodate” “all aspects” of an “employee’s * * * religious observance or practice” that can be ac-commodated “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Otherwise, adverse actions taken against an em-ployee for engaging in a religious practice are taken “because of such individual’s * * * religion,” in viola-tion of the statute. EEOC v. Abercrombie & Fitch Stores Inc., 135 S. Ct. 2028, 2032 (2015).

Title VII further states that, absent “an intention to discriminate” based on a protected classification, “it shall not be an unlawful employment practice” for em-ployers to treat employees differently “pursuant to a bona fide seniority or merit system.” 42 U.S.C. § 2000e–2(h); see Hardison, 432 U.S. at 81–82. As ex-plained below, the accommodations that petitioner seeks do not conflict with respondent’s seniority policy.

B. This Court’s decisions interpreting Title VII’s religious accommodation require-ment

Hardison was this Court’s first merits decision as-sessing a religious accommodation claim under Title VII. Hardison, a member of the Worldwide Church of

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God, abstained from work on Saturdays. 432 U.S. at 67–68. When he was transferred to a new position at TWA, his seniority was no longer sufficient for him to avoid working on his Sabbath. Id. at 68. TWA re-jected Hardison’s request to work a four-day week, as that would have left the shift shorthanded or required TWA to pay premium wages to his replacement. Id. at 68–69. When Hardison did not show up to work on Saturday, he was fired. Id. at 69.

The Court ruled against Hardison, concluding that “TWA made reasonable efforts to accommodate” and that further accommodation “would have been an un-due hardship” under pre-1972 Title VII, as “construed by the EEOC guidelines.” Id. at 77. Title VII did not require TWA to violate “an agreed-upon seniority sys-tem * * * to accommodate religious observances,” the Court stated, or contemplate the “unequal treatment” of “deny[ing] the shift and job preferences of some” to “prefer the religious needs of others.” Id. at 79–81.

As to the possibility of a four-day week, the Court reasoned that such an accommodation would “involve costs to TWA, either in the form of lost efficiency” or “higher wages,” and that “requir[ing] TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Id. at 84. Nota-bly, however, “the parties’ briefs in Hardison did not focus on the meaning of [‘undue hardship’]”; neither the parties nor the United States “advanced the de minimis position”; and “the Court did not explain the basis for this interpretation.” Patterson, 140 S. Ct. at 686 (Alito, J., concurring in the denial of certiorari).

Justice Thurgood Marshall, joined by Justice Wil-liam Brennan, dissented. It “makes a mockery of the statute,” Justice Marshall noted, to reject a religious

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accommodation “simply because it involves preferen-tial treatment.” Hardison, 432 U.S. at 87–88. Ob-serving that such treatment was required absent “‘un-due hardship,’” he “question[ed] whether simple Eng-lish usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’” Id. at 88, 92 n.6.

This Court has never since applied Hardison’s de minimis standard. In Ansonia Board of Education v. Philbrook, for example, the Court repeated Hardi-son’s standard without applying it. 479 U.S. 60, 67 (1986). But the lower federal courts—all eleven cir-cuits to address the issue—treat Hardison as bind-ing.1

C. Jason Small’s employment with Memphis Light, Gas & Water

Jason Small is an Elder in the Collierville Congre-gation of Jehovah’s Witnesses in Collierville, Tennes-see, a Memphis suburb. App. 33a, 57a–58a. As a con-gregational leader, he must attend service on Wednes-day evenings and Sundays. He is also required to wit-ness to the community sometime on Saturdays and to

1 Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134

(1st Cir. 2004); Baker v. Home Depot, 445 F.3d 541, 548 (2d Cir. 2006); EEOC v. Geo Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010); EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Davis v. Fort Bend Cty., 765 F.3d 480, 488–489 (5th Cir. 2014); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th Cir. 1997); Harrell v. Donahue, 638 F.3d 975, 980 (8th Cir. 2011); Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999); Tabura v. Kellogg USA, 880 F.3d 544, 557 (10th Cir. 2018); Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995).

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participate in special services a few times a year. App. 2a, 17a.

For more than a decade, Small worked as an elec-trician at Memphis Light, Gas and Water (MLGW), “the largest three-service public utility in the na-tion.”2 Throughout this period, his work schedule al-lowed him to satisfy his religious obligations without incident. App. 17a. In early 2013, however, Small in-jured his wrist on the job. When an MLGW-approved doctor determined that he could no longer safely work as an electrician, he sought reassignment to a job that he could perform without violating his religious obli-gations. While awaiting reassignment, he was placed on reduced salary. Ibid.

What followed was a frustrating series of events in which MLGW repeatedly offered Small jobs that did not allow him to attend his worship services, while re-fusing to make accommodations that would have solved that problem without any undue hardship. Although some details are disputed, the case arises on MLGW’s motion for summary judgment, so the Court must resolve those disputes and draw all reasonable inferences in Small’s favor. Tolan v. Cotton, 572 U.S. 650, 656–657 (2014).

The bone of contention at every point was manda-tory overtime: Unless Small’s need to attend religious services were accommodated, any job with mandatory overtime duties would conflict with his right to prac-tice his religion. Exemptions from the mandatory overtime at issue are not governed by seniority, and thus raise no issue under 42 U.S.C. § 2000e–2(h),

2 http://www.mlgw.com/about/governed.

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which protects bona fide “seniority” systems.3 Rather, the “Work Rules” in the department that Small even-tually joined provide: “Service Dispatching personnel may be required to work overtime when the employee has the least number of cumulative overtime hours and all other available employees have passed the overtime.” App. 44a, 47a (emphasis added). Any man-datory overtime accommodation is thus judged under Title VII’s general “undue hardship” standard.

Small first sought reassignment as an inspector in the revenue protection department—a position that, like his earlier post, would not have conflicted with his religious services. App. 18a. Small was qualified for the job, and an MLGW-approved doctor opined that he could perform the essential functions listed in the job description. App. 18a–19a. In response, how-ever, MLGW’s medical coordinator provided the doc-tor with a list of additional duties, some of which the doctor doubted Small could do (with the reservation that the duties seemed peripheral to the job). App. 20a–21a. Small was not offered the job. App. 2a.

MLGW then suggested that Small take a position as a service advisor. This position, however, required mandatory overtime, so Small declined it. App. 21a. MLGW then offered Small a similar position, service dispatcher, with the same mandatory-overtime re-quirement. This time, however, MLGW told Small he

3 The district court said otherwise (App. 34a), appar-

ently based on MLGW’s unsupported assertion (D.I. 70 at 3). MLGW has never cited any evidence showing that man-datory overtime is assigned based on seniority. But even if MLGW’s policy could be disputed, Small’s evidence must be credited for summary judgment purposes.

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could be fired if he declined the job, only four months into his twelve-month reassignment window. App. 2a.

Faced with being an out-of-work electrician with a chronic wrist injury, Small accepted the job, hoping he might somehow avoid the seemingly inevitable sched-uling conflicts with his religious obligations. Ibid. Be-cause dispatchers on vacation are not “available” for mandatory overtime under MLGW’s rules, Small tried to avoid those conflicts by using vacation time to avoid overtime assignments during worship services. App. 23a; D.I. 54–1 at 46 (“If staffing is needed, dis-patchers NOT approved for vacation or PTO & are el-igible to work will be REQUIRED to work.”). Unfor-tunately, however, this was not always possible. Small thus requested one of two accommodations: to be placed back into the reassignment pool to find an-other position, or to be exempted from shifts and man-datory overtime that conflicted with his services. App. 22a–23a.

MLGW denied Small’s request to be placed back in the reassignment pool, explaining that, although re-assignment was available to employees with “unsatis-factory job performance,” he “had not received any un-satisfactory reviews.” App. 22a & n.7 (“[A]n employee may be returned to their prior position during the trial period on the basis of performance deficiencies. There have been no performance deficiencies during your trial period[.]”); ibid. (finding “no evidence of an unsatisfactory performance”). If Small had been a worse employee, he would have been accommodated.

MLGW also denied Small’s request to be exempted from conflicting shifts or mandatory overtime. But while MLGW cited its use of seniority to “assign[] shifts” (App. 22a & n.7, 23a; D.I. 54–1 at 38), it offered

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no reason why accommodating Small’s mandatory overtime conflict would either violate its seniority sys-tem or cause undue hardship.

That fall, Small filed an EEOC charge alleging dis-ability and religious discrimination. D.I. 49–9 at 1. Meanwhile, he kept reiterating his request for exemp-tions from working shifts and mandatory overtime during his religious services. Each time, he was de-nied—until 2014, when MLGW partially relented, as to shift assignments. Small was allowed to “blanket swap” regular shifts once a quarter, but he was not accommodated for mandatory overtime—the nub of the problem. App. 23a.

These scheduling conflicts came to a head in 2015. Small had requested vacation to attend services on Good Friday for the Memorial of Christ’s Death, the “most sacred event” in the Jehovah’s Witness faith. D.I. 54–1 at 37; D.I. 49–9 at 3; JW.org, Memorial of Jesus’ Death (2020).4 More than a month in advance, he requested and received vacation for this holy day. But when the time came, MLGW cancelled his vaca-tion, fully aware of the implications. D.I. 49–9 at 3. Small complained, but management told him nothing could be done. D.I. 54–1 at 37. As required by his faith, he missed work to attend the service. Id. at 40.

Small was again required to report for mandatory overtime the following Wednesday, during his weekly service. App. 59a–60a. Here too, Small had requested vacation, which MLGW had approved weeks earlier. Ibid.; D.I. 62–15. But this time Small’s vacation fell

4 Available at: https://www.jw.org/en/jehovahs-wit-

nesses/memorial/.

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prey to a Kafkaesque bureaucratic twist. At the quar-terly shift change, Small had successfully obtained a schedule excluding Wednesdays, which should have eliminated the conflict between his work schedule and Wednesday worship. Because he was not regularly scheduled on Wednesdays, however, company policy prohibited him from taking Wednesdays off—which meant he could no longer use vacation to avoid con-flicts with Wednesday services. D.I. 54–1 at 37. Small complained, again without success, and again missed work to attend the service. Id. at 37, 40.

For attending his services rather than working on Good Friday and the following Wednesday, Small was suspended for two days without pay. App. 24a.

D. The district court’s decision Small sued, alleging religious discrimination un-

der Title VII, disability discrimination under the ADA, and retaliation. D.I. 1.

MLGW moved for summary judgment on all claims. The district court granted the motion. App. 43a, 27a. As to the religious discrimination claim, the court assumed that Small had made out a prima facie case, but held that MLGW “offered accommodations [from conflicting shifts] by allowing a ‘blanket swap,’” and that further “accommodations would result in an undue hardship.” App. 33a. The court recognized, however, that blanket swaps did not address the con-flicts with mandatory overtime: Small missed work “not because he was assigned to a regular shift that conflicted with his obligations but because he was be-ing asked to work mandatory overtime.” App. 34a. “[A]ttempts were not made” to accommodate the man-datory overtime conflicts. App. 35a.

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The court held that Small’s requested accommoda-tions—being returned to the reassignment pool or ex-empted from mandatory overtime during religious worship—“would result in an undue hardship.” App. 33a. Returning to the reassignment pool, which would entail paying Small a reduced wage not to work, “would, as a matter of law, place more than a de min-imis burden on MLGW.” App. 35a.

As to exempting Small from mandatory overtime, the court held that MLGW was not required to accom-modate Small for two reasons. First, the court as-serted (incorrectly, see App. 47a–48a) that mandatory overtime was “assigned based on seniority,” and thus that accommodating Small would be an undue hard-ship because “MLGW’s obligation to upset seniority status” is “limited.” App. 34a. Second, “shifting all of the relevant mandatory overtime obligations to other employees * * * would, as a matter of law, place more than a de minimis burden on MLGW.” App. 35a.

E. The court of appeals’ decision Small appealed. In his opening brief, he contended

“that MLGW discriminated against him based on his religion when [it] knowingly placed him into a job with regular shift changes along with sporadic man-datory overtime that would inevitably interfere with Small’s religious obligations.” App. 56a–57a. Small maintained that the requested accommodations—ex-emption from mandatory overtime during his worship services or return to the reassignment pool—“would have at most caused MLGW a de minimis burden.”

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App. 57a.5 He also argued that the district court’s re-jection of the accommodations on “undue hardship” grounds was “erroneous.” App. 59a.

The Sixth Circuit affirmed, holding that MLGW “did not have to offer any accommodation that would have imposed an ‘undue hardship’ on its business—meaning (apparently) anything more than a ‘de mini-mis cost.’” App. 5a (quoting Hardison, 432 U.S. at 84). Accepting MLGW’s assertion that “additional accom-modations would have impeded the company’s opera-tions, burdened other employees, and violated its sen-iority system,” the court stated: “Our court has found similar costs to be more than de minimis.” App. 5a–6a (citations omitted).

Despite having addressed the undue hardship is-sue, the court stated that “Small has not challenged whether the accommodations would have imposed an undue hardship on the company—beyond a passing assertion in his brief. Instead, he argues only about whether the company did accommodate his religious beliefs.” App. 6a. As recounted above, however, Small had argued that his requested accommodations would impose no undue hardship, and MLGW responded at length without suggesting forfeiture. C.A. Appellee’s Br. 42 (“2. Further accommodation of Plaintiff’s reli-gious needs presented an undue hardship to MLGW.”).

In a concurrence joined by Judge Kethledge, Judge Thapar criticized the “de minimis” standard at length, explaining that it conflicts with the ordinary meaning of “undue hardship.” App. 9a–11a. As Judge Thapar

5 Small also appealed disability discrimination, hostile work environment, and settlement-related issues, but this petition raises no question concerning those issues.

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noted, “the word ‘hardship’” alone “would imply some pretty substantial costs,” and Congress “specified that the ‘hardship’ must be ‘undue.’” App. 9a. Judicial in-terpretations of “undue hardship” elsewhere in the U.S. Code confirm that it typically means “significant difficulty or expense,” or more than “garden-variety hardship.” Ibid. Judge Thapar thus concluded that Hardison’s reading lacks textual support, and that any Establishment Clause concerns that may have in-fluenced Hardison are foreclosed by later precedents. App. 12a–13a. Finally, he noted that Hardison pri-marily “harm[s] religious minorities,” in conflict with the value of “religious pluralism.” App. 14a.

REASONS FOR GRANTING THE PETITION This case raises an important and recurring ques-

tion that urgently warrants review: Is any religious accommodation that imposes more than a “de minimis” cost an “undue hardship” under Title VII? In Hardi-son, where the de minimis standard first appeared (432 U.S. at 84), the Court did not say how it arrived at that reading of the statute, which neither party nor the United States advocated. As the dissent there rec-ognized, the de minimis rule “makes a mockery” of Ti-tle VII: It flouts “simple English usage” and compels “thousands of Americans” to choose between staying true to their faith and staying employed. Id. at 96–97, 92 n.6 (Marshall, J., dissenting). Hardison also all but guarantees employers a win; and whatever doctri-nal concerns animated the decision, none “remain[] valid.” App. 13a (Thapar, J., concurring).

Several Justices of this Court, the EEOC, the con-currence below, and a host of academic commentators have recognized that the Court “should reconsider the

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proposition * * * that Title VII does not require an em-ployer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.” Patterson, 140 S. Ct. at 685 (Alito, J., concurring in denial of certiorari); see also Abercrombie, 135 S. Ct. at 2040 n.* (Thomas, J., con-curring and dissenting in part); App. 14a (Thapar, J.); infra at 23–25. This case, moreover, provides an ex-cellent vehicle for doing so. It involves a dedicated employee of longstanding service, a major employer capable of accommodating his scheduling needs with-out undue hardship (properly understood), and a scheduling conflict typical of myriad cases.

Small made more than a “passing assertion” sup-porting his “undue hardship” claim below (App. 6a)—enough to alert MGLW to provide a full response with-out suggesting forfeiture. Even if he somehow failed to raise the issue as fully as the court below might have wished, however, the court addressed the issue on the merits (App. 5a–6a), which itself enables this Court to decide it. And it makes little sense to require an extended argument on a point clearly foreclosed by binding Supreme Court precedent.

In sum, Hardison unfairly stacks the deck against employees, particularly religious minorities, without warrant in Title VII, and the decision continues to im-pose negative consequences on thousands of employ-ees. The Court should grant certiorari and “consider whether Hardison’s interpretation should be over-ruled.” Patterson, 140 S. Ct. at 686 (Alito, J.).

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I. This Court should revisit Hardison’s conclu-sion that employers suffer “undue hardship” whenever accommodating employees’ faith imposes “more than a de minimis cost.” It is for good reason that several Justices, two cir-

cuit judges below, the United States, and numerous commentators have called for Hardison to be revisited: The decision lacks support in Title VII’s text, struc-ture, history, or purpose, governs thousands of claims, imposes severe consequences on religious minorities, has been undercut by later decisions, and can worka-bly be replaced by a standard faithful to the statute.

A. As the United States has recognized, Har-dison’s atextual reasoning cannot be rec-onciled with the text, structure, history, or purpose of Title VII.

We begin with a simple but vital point: Hardison’s conclusion that employers suffer “undue hardship” whenever accommodating religious employees entails “more than a de minimis cost” (432 U.S. at 84) makes a mockery of Title VII. As the EEOC—the agency charged with enforcing the statute—has explained: Hardison is “incorrect” and should be revisited. U.S. Patterson Invitation Br. 19.

1. As to text, Hardison’s standard conflicts with “the ordinary public meaning of Title VII’s command.” Bostock, slip op. at 7. “[S]imple English usage” does not “permit[] ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’” Hardison, 432 U.S. at 92 n.6 (Marshall, J., dissenting). Dictionaries from the relevant period define “hardship” as “a thing hard to bear.” App. 9a (Thapar, J., concurring) (quot-ing Webster’s New Twentieth Century Dictionary of the

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English Language 826 (2d ed. 1975)).6 For its part, “undue” means “excessive.” Ibid. (quoting The Amer-ican Heritage Dictionary of the English Language 1398 (1969)).7 Taken together, then, suffering “undue hardship” involves experiencing not just some diffi-culty, but excessive difficulty. For accommodation to be denied to an employee, therefore, it must impose at least “significant costs” on the employer. Ibid.

“‘De minimis,’” by contrast, “means a ‘very small or trifling matter’”—“the opposite of an ‘undue hard-ship.’” App. 11a (quoting Black’s Law Dictionary 388). To state the obvious, a burden can be more than tri-fling without being excessive. As the United States has observed, interpreting “undue hardship” to “mean any cost that is ‘more than a trifle’” is an “ill fit to the word ‘undue,’” which ordinarily means “‘excessive.’” U.S. Patterson Invitation Br. 19 (quoting American Heritage Dictionary 1398). Without any textual anal-ysis, however, Hardison declared that anything more than the slightest burden is “undue.” 432 U.S. at 84; see Arthur Larson, Discrimination as a Field of Law, 18 Washburn L.J. 413, 419–420 (1979) (criticizing the “remarkable sentence” in which the Court announced the de minimis standard).

6 Accord Random House Dictionary of the English Lan-

guage (1968) (“a condition that is difficult to endure; suf-fering; deprivation; oppression”); Webster’s New Collegiate Dictionary (1971) (“suffering, privation”).

7 Accord Random House Dictionary of the English Lan-guage (1968) (“unwarranted; excessive” “inappropriate; unjustifiable; improper.”); Webster’s New Collegiate Dic-tionary (1971) (“inappropriate, unsuitable,” or “exceeding or violating propriety or fitness”).

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“Congress has typically defined ‘undue hardship’” as involving significant difficulty or costs. App. 9a. (Thapar, J.). Most tellingly, in adopting a reasonable accommodation requirement in the Americans with Disabilities Act (ADA), Congress explicitly rejected Hardison’s interpretation of “undue hardship” in fa-vor of a “significant difficulty or expense” standard. See S. Rep. No. 101–116, at 36 (1989) (rejecting “the principles enunciated by the Supreme Court in [Har-dison]”); 42 U.S.C. §§ 12112(b)(5)(A), 12111(10). As one would expect, what is “undue” for ADA purposes varies with factors such as the accommodation’s “cost” and “impact” on “operation[s],” together with the em-ployer’s “size,” “type,” and “financial resources.” Id. § 12111(10)(B)(i)–(iii). Many other laws likewise de-fine “undue hardship” to mean “significant difficulty or expense.” App. 10a (Thapar, J.) (citing 28 U.S.C. § 1869(j) (jury service); 29 U.S.C. § 207(r)(3) (Fair La-bor Standards Act); 38 U.S.C. § 4303(15) (veteran em-ployment)).

Even where, as here, Congress has used the term “undue hardship” without defining it, court decisions interpreting that term make Hardison look all the more anomalous. The Bankruptcy Code, for example, allows debtors to discharge student loans that work an “undue hardship.” 11 U.S.C. § 523(a)(8). But as Judge Thapar noted, the courts have held that “‘[t]he plain meaning’ of that term * * * requires the debtor to show that the debt imposes ‘intolerable difficulties * * * greater than the ordinary circumstances that might force one to seek bankruptcy relief’” (App. 10a (quoting In re Thomas, 931 F.3d 449, 454 (5th Cir. 2019))), and that “the adjective ‘undue’ indicates that Congress viewed garden-variety hardship as [an] in-sufficient excuse.” Ibid. (quoting In re Frushour, 433

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F.3d 393, 399 (4th Cir. 2005) (quoting In re Rifino, 245 F.3d 1083, 1087 (9th Cir. 2001))). One searches Har-dison in vain for any explanation, let alone a convinc-ing one, of why the ordinary meaning of Title VII’s use of “undue hardship” should be different.

2. While failing to analyze the term “undue hard-ship,” the majority in Hardison declared that Title VII did not “contemplate” the “prefer[ential]” treatment of “religious needs” over “nonreligious[] reasons for not working on weekends.” 432 U.S. at 81, 84–85; see id. at 71–72 (“similarly situated employees are not to be treated differently solely because they differ with re-spect to [religion]”). As Justice Marshall recognized, however, that view “effectively nullif[ies]” the statute. Id. at 87. And this Court has since held that “Title VII does not demand mere neutrality” toward “reli-gious practices”—“it gives them favored treatment.” Abercrombie, 135 S. Ct. at 2034.

Title VII is structured not only to prohibit discrim-ination based on religious “belief,” but to require ac-commodation of “religious observance and practice” where doing so would not work an “undue hardship.” 42 U.S.C. § 2000e(j); see Abercrombie, 135 S. Ct. at 2036 (Alito, J., concurring in the judgment) (“If neu-tral work rules * * * precluded liability, there would be no need to provide [an undue hardship] defense.”). The idea that the statute does not “contemplate” any “prefer[ential]” treatment of employees’ “religious needs” (Hardison, 432 U.S. at 81) thus effectively lim-its the statute to a bar on belief-based discrimination, in violation of “one of the most basic interpretive can-ons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”

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Corley v. United States, 556 U.S. 303, 314 (2009) (in-ternal quotation marks and citations omitted). It also defies the presumption that Congress “intends its amendment[s] to have real and substantial effect[s].” Stone v. INS, 514 U.S. 386, 397 (1995).

3. The statute’s history powerfully confirms that the undue hardship standard should be reasonably stringent. As originally enacted, Title VII did not ex-plicitly require religious accommodation. The EEOC read the unamended statute as obligating employers to accommodate religious employees absent “serious inconvenience.” 29 C.F.R. § 1605.1 (1967). In re-sponse to complaints about failures to accommodate Sabbath observance and religious holidays, however, the EEOC strengthened the standard to require ac-commodation absent “undue hardship.” Ibid. (1968). When Congress made the accommodation require-ment explicit, it selected this “stiffened” standard. Ackerman, supra, at 5. Yet Hardison’s “de minimis” standard is even weaker than the “serious inconven-ience” standard that Congress rejected.

Further, as Justice Marshall noted, the “instruc-tive” legislative history shows that the “primary pur-pose of the [1972] amendment” was “to make clear that Title VII requires religious accommodation, even though unequal treatment would result,” and “to pro-tect Saturday Sabbatarians”—“‘whose religious prac-tices rigidly require them to abstain from work * * * on particular days.’” Hardison, 432 U.S. at 89 (quot-ing 118 Cong. Rec. 705 (1972) (statement of Sen. Jen-nings Randolph)). And the notion that religious ac-commodation is out of keeping with an antidiscrimi-nation statute is even harder to square with today’s U.S. Code, which requires employers to accommodate

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disabled employees absent “undue hardship,” defined as “significant difficulty or expense.” Supra at 18.

4. It seems likely that Hardison’s strained read-ing was based on concerns that reading the statute to require “prefer[ential]” treatment of “religious needs” over “nonreligious[] reasons for not working on week-ends” would violate the Establishment Clause. Id. at 81, 84–85. Even in 1977, that concern was far-fetched —as explained by Justice Marshall, a strict separa-tionist, who dissented. Id. at 89–90. Regardless, any “doctrinal merit that [this] concern once may have had” no longer “remains valid.” App. 13a (Thapar, J.).

This Court has repudiated the view that statutes that “single[] out” religious individuals or entities for “special consideration” necessarily violate the Estab-lishment Clause. Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987); see also Hosanna-Ta-bor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012). Moreover, in Cutter v. Wil-kinson, the Court unanimously rejected the view that it is unconstitutional to require accommodation of re-ligious needs at the expense of “other significant in-terests.” 544 U.S. 709, 722 (2005). Although an “‘ab-solute and unqualified right’” to accommodation raises Establishment Clause concerns, “appropriately balanced” accommodation requirements are entirely permissible. Ibid. A requirement of “reasonable ac-commodation,” short of “undue hardship,” is a quin-tessential example of an appropriate balance. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J., concurring).

In sum, “Hardison’s reading does not represent the most likely interpretation of the statutory term ‘un-due hardship.’” Patterson, 140 S. Ct. at 686 (Alito, J.).

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In fact, that reading “is not a reasonable interpreta-tion of th[at] statutory phrase” (U.S. Patterson Invita-tion Br. 8), as all “the traditional tools of statutory in-terpretation” foreclose it. App. 8a (Thapar, J.). This Court should thus revisit Hardison.

B. Hardison’s de minimis standard thwarts thousands of claims, and precludes many others from being filed.

If Hardison had involved a law that applied only rarely, perhaps it could be allowed to stand. But the Court was interpreting a core provision of the nation’s signature civil rights law: Title VII’s religious nondis-crimination requirement. That requirement applies to employers with more than fifteen employees (42 U.S.C. § 2000e(b)), and to thousands of claims—not to mention those never filed because Hardison creates an insurmountable barrier to relief.

1. In a typical year, the EEOC receives more than 2900 charges of religious discrimination, over 560 of which involve accommodation requests. EEOC, Reli-gion-Based Charges (Charges filed with EEOC) FY 1997–FY 2019 (2019) (“Religion-Based Charges”); 8 EEOC, Bases by Issue (Charges filed with EEOC) FY 2010–FY 2019 (2019) (“Bases by Issue”).9 Moreover, the number of religion-based charges “more than dou-bled from 1992 to 2007.” EEOC Guidance, Section 12:

8 Available at: https://www.eeoc.gov/enforcement/reli-

gion-based-charges-charges-filed-eeoc-fy-1997-fy-2019. 9 Available at: https://www.eeoc.gov/enforcement/ba-

ses-issue-charges-filed-eeoc-fy-2010-fy-2019

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Religious Discrimination (2008).10 Even these trou-bling figures likely understate religious discrimina-tion in the workplace. As a recent Justice Department report found, “religious discrimination in employment settings” has long been underreported. U.S. Depart-ment of Justice, Combating Religious Discrimination Today: Final Report 17–18 (July 2016).11

2. Many employees never file religious accommo-dation claims, knowing the claims are dead on arrival. Under the de minimis standard, employers routinely win as a matter of law simply by saying they would have to do more than lift a finger. As Justice Marshall noted, Hardison could have been accommodated for $150—a “far from staggering” cost (432 U.S. at 92 n.6)—but even that sum was deemed too burdensome to impose on “one of the largest airlines in the world.” App. 11a (Thapar, J.). Thus, commentators immedi-ately recognized that Hardison “impose[d] only a very minimal affirmative duty of accommodation, if any, on the employer.” Ackerman, supra, at 14. As the Ninth Circuit remarked shortly after Hardison, “a standard less difficult to satisfy * * * is difficult to imagine.” Yott v. N. Am. Rockwell Corp., 602 F.2d 904, 909 (9th Cir. 1979).

Indeed, “lower courts almost never require an em-ployer to occur any economic or efficiency costs.” Deb-bie N. Kaminer, Title VII’s Failure to Provide Mean-ingful and Consistent Protection of Religious Employ-ees: Proposals for an Amendment, 21 Berkeley J. Emp.

10 Available at: https://www.eeoc.gov/laws/guid-ance/section-12-religious-discrimination.

11 Available at: https://www.jus-tice.gov/crt/file/877936/download.

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& Lab. L. 575, 610–611 (2000). Numerous scholars have recognized as much.12 Virtually the only plain-tiffs who prevail on the undue hardship question have “employer[s] [that] made no attempt at accommoda-tion.” Karen Engle, The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII, 76 Tex. L. Rev. 317, 397 (1997).

Employers have gotten the message. As leading academics have observed, Hardison has fostered a culture of “[e]mployer apathy toward religious accom-modation.” William P. Marshall et al., Religion in the Workplace, 4 Emp. Rts. & Emp. Pol’y J. 87, 92 (2000). The decision signaled to employers “that require-ments of religious conscience are less important than even arbitrary decisions related solely to personal convenience.” Ibid. And for their part, many religious employees, aware that suing is typically futile, either never file claims or “accept any offered accommoda-tion—even when it does not adequately accommodate their religious observance—because courts are un-willing to require more.” Matthew P. Mooney, Be-tween a Stone and a Hard Place: How the Hajj Can

12 E.g., Peter Zablotsky, After the Fall: The Employer’s

Duty to Accommodate Religious Practices under Title VII after Ansonia Board of Education v. Philbrook, 50 U. Pitt. L. Rev. 513, 547 (1989) (Hardison has “evolved into a per se approach; virtually all cost alternatives have been de-clared unduly harsh simply because a loss [to the employer] is involved”); Rachel M. Birnbach, Love Thy Neighbor: Should Religious Accommodations That Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hard-ship on the Employer under Title VII, 78 Fordham L. Rev. 1331, 1347 (2009) (“[C]ourts tend to find that virtually any economic cost to an employer is an undue hardship.”).

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Restore the Reasonable Accommodation to Title VII, 62 Duke L.J. 1029, 1050 (2013). This Court should intervene.

C. Hardison has especially pernicious effects on those, including religious minorities, whom Title VII was designed to protect.

For four decades, Hardison has put “thousands of Americans” to “the cruel choice of surrendering their religion or their job.” 432 U.S. at 96, 87 (Marshall, J., dissenting). Even in 1977, that problem was “[p]artic-ularly troublesome” for “adherents to minority faiths who do not observe the holy days on which most busi-nesses are closed,” but nonetheless “need time off for their own days of religious observance.” Id. at 85. With the nation’s growth in religious diversity, the problem is still more acute today.

As Judge Thapar put it, the “tragedy” of Hardison is that it “most often harm[s] religious minorities—people who seek to worship their own God, in their own way, and on their own time.” App. 14a. Accord-ing to a study undertaken by an amicus in Patterson, 62 percent of cases that turned on the “undue hard-ship” issue since 2000 involved members of non-Chris-tian faiths or Christians who observe Saturday Sab-baths. Christian Legal Society et al. Amicus Br. 24 (No. 18–349).

Nor is this surprising. Purely by virtue of the numbers, work schedules have long been more likely to accommodate the scheduling needs of members of larger faiths. It is no coincidence, for example, that few offices are open on Sunday, or that in much of the country few employers are open on Christmas or Easter, while many offices are open on Friday, Satur-day, and non-Christian religious holidays. Yet many

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minority faiths have calendars that are out-of-sync with mainstream religious practice. For example, “common religious accommodations” sought by reli-gious minorities include Muslims seeking “a break schedule that will permit daily prayers at prescribed times,” Native Americans seeking “leave to attend a ritual ceremony,” or other employees seeking to ab-stain from “working on [their] Sabbath.” EEOC, What You Should Know: Workplace Religious Accommoda-tion (2014).13

Litigated religious discrimination cases—a minor-ity of claims—confirm that the de minimis standard has imposed extra hardships on religious minorities. As this case and many others show, religious minori-ties often “need time off for their own days of religious observance,” and under Hardison they almost always lose. 432 U.S. at 85 (Marshall, J., dissenting); supra at 25. Indeed, one court held that, even where neither time off nor out-of-pocket costs were required, allow-ing a Muslim employee to pray in any of several office locations would be an “undue hardship” because his praying would “be disruptive to [others’] work” and “impede[] the flow of personnel.” Farah v. A–1 Ca-reers, 2013 WL 6095118, *8–9 (D. Kan. Nov. 20, 2013).

Only by granting review and overruling Hardison can this Court restore to the workplace the “hospital-ity to religious diversity” that has been “one of this Nation’s pillars of strength.” 432 U.S. at 97 (Marshall, J., dissenting).

13 Available at: https://www.eeoc.gov/laws/guid-

ance/what-you-should-know-workplace-religious-accom-modation.

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D. The “undue hardship” standard is applied elsewhere without difficulty.

Unlike Hardison’s de minimis test, a stronger “un-due hardship” standard not only would be more faith-ful to Title VII, but would workably balance religious employees’ right to accommodation with the demands of the workplace. Even in Hardison, the employer and the government “presupposed a higher standard” than the Court’s de minimis standard—one requiring a showing of “significant[]” or “substantial” costs. U.S. Patterson Invitation Br. 21. Other laws confirm that such a standard is sensible.

For example, employers have long complied with meaningful “undue hardship” requirements under the ADA and state antidiscrimination law. As noted (at 18), the ADA defines “undue hardship” as “an action requiring significant difficulty or expense” in light of factors such as the employer’s size and resources. 42 U.S.C. § 12111(10). California’s religious accommo-dation law defines “undue hardship” similarly. Cal. Gov. Code §§ 12926(u), 12940(l). Courts have been able to apply these laws “in a practical way” to “case-specific” circumstances. US Airways, Inc. v. Barnett, 535 U.S. 391, 401–402 (2002); Dykzeul v. Charter Commc’ns Inc., 2019 WL 8198218, *6–7 (C.D. Cal. Nov. 18, 2019).

Under a meaningful undue hardship standard, employees are much more likely to receive accommo-dation for conflicts between their faith and their work —especially conflicts involving work schedules. Faced with a tougher standard, many employers may simply grant accommodation or not dispute “undue hardship.” Schlitt v. Abercrombie & Fitch Stores, Inc.,

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2016 WL 2902233, *10 (N.D. Cal. May 13, 2016) (em-ployer not disputing that “observance of the Sabbath” could be accommodated without “undue hardship”). As discussed below, a strengthened undue hardship standard would have made all the difference for Small, who could have been reassigned to another job or ex-empted from mandatory overtime on worship service days without significant expense to MLGW. Review should be granted so this Court can restore Congress’s undue hardship requirement to its original design.

E. Stare decisis does not warrant adhering to Hardison.

Of course, stare decisis counsels against overrul-ing decisions that have long been on the books. But stare decisis is not “‘an inexorable command.’” Pear-son v. Callahan, 555 U.S. 223, 233 (2009) (citation omitted); Gamble v. United States, 139 S. Ct. 1960, 1993 (2019) (Ginsburg, J., dissenting). Especially when a patently erroneous interpretation has “effec-tively nullif[ied]” an important civil rights law (Har-dison, 432 U.S. at 89 (Marshall, J., dissenting)), this Court has not hesitated to correct its mistakes rather than “place on the shoulders of Congress the burden of the Court’s own error.” Monell v. Dept. of Soc. Servs., 436 U.S. 658, 695 (1978) (citation omitted). Hardison’s error is so clear and consequential that the United States, which enforces Title VII, has asked this Court to reconsider it. U.S. Patterson Invitation Br. 21–22.

Further, the meaning of “undue hardship” did not receive the careful attention it deserved in Hardison. No party or amicus there advocated the “de minimis” interpretation. Indeed, both the government and the employer presumed that any “undue hardship” would

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“‘significantly and demonstrably affect[] the em-ployer’s business,’” or involve at least “‘substantial’” costs. U.S. Patterson Invitation Br. 21 (quoting U.S. Amicus Br. 20 and Pet. Br. 41, Hardison, No. 75–1126 (emphasis omitted)). In a very real sense, then, grant-ing certiorari would provide the Court with its “first meaningful opportunity to interpret ‘undue hardship’ in Title VII with the benefit of full briefing.” Ibid. (emphasis added); see also Abercrombie, 135 S. Ct. at 2040 n.* (Thomas, J., concurring) (“the relevant lan-guage in Hardison is dictum”).

In addition, the Court in Hardison “did not explain the basis for [its] interpretation” (Patterson, 140 S. Ct. at 686 (Alito, J.)), and its conclusion contravenes this Court’s repeated teaching that, “unless otherwise de-fined,” words should be given “their ordinary, contem-porary, common meaning.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). Thus, “the quality of the decision’s reasoning” (Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1499 (2019)) does not support adhering to Hardison.

Finally, “legal developments since the decision” have undermined Hardison’s rationale. Ibid. Aber-crombie repudiated Hardison’s statement that Title VII requires no accommodations that result in “une-qual treatment” of religious and nonreligious employ-ees. Compare Hardison, 432 U.S. at 84, with Aber-crombie, 135 S. Ct. at 2034. And any Establishment Clause concerns that may have influenced Hardison no longer “remain[] valid” after Amos, Hosanna-Tabor, and Cutter. App. 13a (Thapar, J., concurring) (citing Cutter, 544 U.S. at 722–724); supra at 21; accord U.S. Patterson Invitation Br. 21–22.

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In sum, “[a]ll Americans will be a little poorer until [Hardison] is erased.” Hardison, 432 U.S. at 97 (Mar-shall, J., dissenting). II. This case is an excellent vehicle to address

the question presented. This is an “appropriate case to consider whether

Hardison’s interpretation should be overruled.” Pat-terson, 140 S. Ct. at 686 (Alito, J.). Small is an em-ployee of longstanding service, and one for whom a correct reading of “undue hardship” would almost cer-tainly change the outcome. Although the court below stated that he did not develop his “undue hardship” position at length, the record shows that he pressed the issue, that MLGW responded without suggesting forfeiture, and that “the court below passed on the is-sue,” which itself “suffices” for the Court to address it. Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n.8 (1991); see App. 5a–6a (addressing the issue). Indeed, two judges below joined a separate concur-rence addressing the need to revisit Hardison.

A. These facts squarely present the question whether Hardison should be overruled, and reversal would likely change the out-come on remand.

This case presents an excellent vehicle for revisit-ing Hardison. Small’s need for accommodation arose when, after years of exemplary service, he was injured on the job and transferred to a post where his shift and overtime schedules conflicted with his worship obligations. App. 2a. After endeavoring to avoid these conflicts by using vacation or trading shifts, Small re-quested either reassignment or an exemption from mandatory overtime during his services. Yet MLGW, a public utility with thousands of employees, denied

31

his requests on the nebulous ground that they would impair operations. App. 2a, 5a–6a.

The scheduling accommodations that Small seeks do not conflict with any seniority policy. See 42 U.S.C. § 2000e–2(h) (absent intentional discrimination, em-ployers may treat employees differently “pursuant to a bona fide seniority or merit system”); Hardison, 432 U.S. at 81–82. For example, MLGW could either ex-empt Small from mandatory overtime during his wor-ship services or allow him to avoid mandatory over-time by taking vacation on days off. Under its “Work Rules,” MLGW assigns such overtime to the available dispatcher with the “least number of cumulative over-time hours,” so neither accommodation would violate any seniority policy. App. 44a, 47a–48a (“Service Dis-patching personnel may be required to work overtime when the employee has the least number of cumula-tive overtime hours and all other available employees have passed the overtime.”).14 And it is undisputed that no seniority system applied to Small’s request to be returned to the reassignment pool. Indeed, the only reason that MLGW gave for refusing this accom-modation is that the reassignment pool is reserved for employees with “performance deficiencies”—which Small lacked. App. 22a n.7. In other words, Small was too good of an employee to be eligible.

14 As noted (at 8 n.3), the district court stated—citing

no evidence—that mandatory overtime is assigned based on seniority. App. 34a. MLGW asserted the same, likewise without record support. D.I. 70 at 3, 7; C.A. Appellee’s Br. 43. Even if unsupported claims could create factual dis-putes, such disputes must be resolved against MLGW on summary judgment.

32

Under any “undue hardship” test that is faithful to the statute, summary judgment should not have been granted to MLGW. Allowing Small not to work man-datory overtime during his services—or at the very least, not cancelling his vacation when it would enable him to avoid such overtime—would require only mod-est adjustments to the dispatchers’ schedules. Like-wise, MLGW allows poorly performing trainees to re-turn to the reassignment pool; the only reason that MLGW gave for denying Small that option was that he had exhibited “no performance deficiencies.” Ibid. Thus, returning Small to that pool would at most con-stitute a “garden-variety hardship” for MLGW. App. 10a. At a minimum, a jury could reasonably so find. Thus, reversal and remand for application of a proper undue hardship standard would likely alter the out-come of this dispute.

B. Small’s claim involves the most common conflict between employees’ religious practices and work-related obligations.

This case is also typical of “the largest class of [ac-commodation] cases”—those involving conflicts with “work schedules.” Hardison, 432 U.S. at 87 (Marshall, J., dissenting). As Justice Marshall observed in Har-dison, “the plight of adherents to minority faiths * * * who need time off for their own days of religious ob-servance” is “[o]ne of the most intractable problems” under Title VII. Id. at 85.

The EEOC has since found that conflicts between work schedules and religious obligations are the “most frequent[]” reason that employees cite for re-questing religious accommodation. 29 C.F.R. § 1605.2(d)(1); see U.S. Patterson Invitation Br. 13 (“conflict[s] between work schedules and religious

33

practices” arise “frequently”). A review of “undue hardship” cases that have reached the courts bears out that finding.15 Thus, a decision here will have broad impact.

C. Small raised the undue hardship issue be-low and both lower courts addressed it.

Small contested MLGW’s claim that accommodat-ing him would work an undue hardship in both courts below. The circuit judges asserted that he disputed undue hardship only in “passing” (App. 6a) and not “in a meaningful way.” App. 14a (Thapar, J.). But that is incorrect: The issue was pressed by Small, disputed by MLGW, addressed by both the district court (App. 33a–35a) and the court of appeals (App. 5a–6a), and analyzed in a two-judge concurring opinion (App. 8a–14a). Indeed, “even if [undue hardship] were a claim not raised” below, the Court “would ordinarily feel free to address it, since it was addressed.” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (emphasis omitted).

1. Throughout the proceedings below, Small con-tended that, although MLGW did not reasonably ac-commodate his need to attend worship, it could have done so without undue hardship. His summary judg-ment brief detailed the conflict between the overtime rules and his religious services. D.I. 63 at 15–18. On the undue hardship issue, he argued that he could be “easily placed” back into the reassignment pool, as

15 E.g., Patterson v. Walgreen Co., 727 Fed. App’x. 581

(11th Cir. 2018); Tabura, 880 F.3d 544; Davis, 765 F.3d 480; Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011); George v. Home Depot, 51 Fed. App’x. 482 (5th Cir. 2002); Ilona, 108 F.3d at 1576.

34

MLGW had done with “similarly situated employees.” Id. at 18. And as to mandatory overtime, he stressed that other employees were on “approved vacation” when his vacation was cancelled for mandatory over-time, demonstrating that “overtime was not ‘manda-tory’” or necessary to avoid short staffing. Id. at 17.

The district court addressed Small’s undue hard-ship arguments on the merits, holding that “where [MLGW] has not offered accommodations, it is be-cause accommodations would result in an undue hardship.” App. 33a. Specifically, “shifting all of the relevant mandatory overtime obligations to other em-ployees or placing Mr. Small back in the reassignment pool on reduced pay to wait for a job with hours more in line with Mr. Small’s religious obligations would, as a matter of law, place more than a de minimis bur-den on MLGW.” App. 35a.

On appeal, Small again advanced his “undue hard-ship” arguments, expressly contending that it was “er-roneous” for the district court to conclude that “accom-modations would result in an undue hardship.” C.A. Appellant’s Br. 40 (App. 59a). As to overtime, he again argued that “the overtime was not ‘mandatory,’” that “similarly-situated employees” were “allowed to take their vacation,” and that allowing him to use va-cation requested “months in advance” and “approved in writing” would have avoided his “suspension with-out pay.” Id. at 41 (App. 59a–60a) (citing D.I. 62–16).

Small also maintained that he was “wrongfully de-nied a reassignment” under company policy. C.A. Ap-pellant’s Br. 37; accord id. at 40 (App. 59a). In support, he cited an MLGW interdepartmental memorandum stating that trainees who “have discovered that this is

35

not the right job for them” “have the right to discon-tinue training and be assigned somewhere else.” Id. at 40 (App. 59a).

Small’s arguments were more than sufficient to preserve the undue hardship issue. See Fed. R. App. P. 28(a)(8)(A). Indeed, far from suggesting that Small forfeited “undue hardship,” MLGW devoted an entire section of its brief to the issue. C.A. Appellee’s Br. 42 (“2. Further accommodation of Plaintiff’s religious needs presented an undue hardship to MLGW.”). Thus, the purpose of the forfeiture rule—ensuring an opportunity to respond to potentially dispositive argu-ments—was served. Indeed, since MLGW did not grant either requested accommodation, Small’s argu-ments can only be read as a challenge to the district court’s undue-hardship holding, not its reasonable-ac-commodation holding.

2. In any event, the court below was not deterred from resolving the undue hardship issue on the merits. It stated:

Small next argues that Memphis Light discrimi-nated against him when it failed to accommodate his religion. But the company did not have to offer any accommodation that would have imposed an “undue hardship” on its business—meaning (ap-parently) anything more than a “de minimis cost.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). Memphis Light says that addi-tional accommodations would have impeded the company’s operations, burdened other employees, and violated its seniority system. Our court has found similar costs to be more than de minimis. See Virts v. Consol. Freightways Corp. of Del., 285

36

F.3d 508, 517–21 (6th Cir. 2002); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1380 (6th Cir. 1994).

App. 5a–6a. Even if there had been a forfeiture, there-fore, the Court would nonetheless be free to reach the question presented. Virginia Bankshares, 501 U.S. at 1099 n.8; Lebron, 513 U.S. at 379.

3. Insofar as the judges below believed Small was required to mount a frontal “challenge to the ‘de min-imis’ test” (App. 14a (Thapar, J.)), “‘a litigant [need not] engage in futile gestures merely to avoid a claim of waiver.’” Chassen v. Fid. Nat’l Fin., Inc., 836 F.3d 291, 293 (3d Cir. 2016) (noting that “[e]very circuit to have answered this question has [so] held”). Here, Hardison controlled—a point not lost on MLGW, which argued that Hardison and this case were “sub-stantially similar.” C.A. Appellee’s Br. 43. Thus, there was little point in developing an extended un-due hardship argument, let alone challenging binding Supreme Court and Sixth Circuit precedent.

4. If the undue hardship issue were somehow deemed forfeited, the Court should proceed anyway, as there is no prejudice to any party or court. See Carlson v. Green, 446 U.S. 14, 17 n.2 (1980) (deciding a question not presented or decided “in either the Dis-trict Court or the Court of Appeals”). After all, the record is fully developed, the issue was argued by both sides, and the courts and concurrence below ad-dressed it. Thus, this Court has the benefit of adver-sarial presentation and three opinions, and the inter-ests supporting forfeiture are not implicated.

CONCLUSION For the foregoing reasons, certiorari should be

granted.

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Respectfully submitted,

MICHAEL W. MCCONNELL G. EDWARD POWELL III Wilson Sonsini Goodrich & Rosati, PC 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 JAMES A. SONNE Stanford Law School Religious Liberty Clinic 559 Nathan Abbott Way Stanford, CA 94305 (650) 724-1900

STEFFEN N. JOHNSON Counsel of Record PAUL N. HAROLD Wilson Sonsini Goodrich & Rosati, PC 1700 K Street, NW Washington, DC 20006 (202) 973-8800 sjohnson@wsgr.com MAUREEN T. HOLLAND YVETTE KIRK Holland & Associates, PC 1429 Madison Ave. Memphis, TN 38104 (901) 278-8120

Counsel for Petitioners JUNE 2020

APPENDIX

1a APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JASON SMALL,

Plaintiff-Appellant,

v.

MEMPHIS LIGHT, GAS AND WATER,

Defendant-Appellee.

No. 19-5710

Appeal from the United States District Court or the Western District of Tennessee at Memphis. No. 2:17-

cv-02118—Sheryl H. Lipman, District Judge.

Decided and Filed: March 12, 2020

Before: DAUGHTREY, KETHLEDGE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Maureen T. Holland, Yvette Kirk, HOLLAND & ASSOCIATES, Memphis, Tennessee, for Appellant. Rodrick D. Holmes, Brooks E. Kostakis, Aubrey B. Gulledge, BOYLE BRASHER LLC, Mem-phis, Tennessee, for Appellee.

2a The court delivered a PER CURIAM opinion.

THAPAR, J. (pp. 7–11), delivered a separate concur-ring opinion in which KETHLEDGE, J., joined.

_________________

OPINION _________________

PER CURIAM. Jason Small claims that his em-ployer, Memphis Light, Gas and Water, violated fed-eral disability and civil-rights law when it reassigned him to a new position. The district court rejected his claims as well as his motion to enforce an alleged set-tlement agreement. We affirm.

I. For over a decade, Small worked as an electrician

at Memphis Light. But in early 2013, he suffered an on-the-job injury that required him to change posi-tions. At first, Small expressed interest in a position as a revenue inspector. Instead, Memphis Light of-fered him a position as a service dispatcher. Without another offer—and at the risk of otherwise being ter-minated—Small accepted the dispatcher position.

Around the same time, Small raised concerns with Memphis Light that his new position would conflict with the practice of his religion (Jehovah’s Witness). Small explained that he had services on Wednesday evenings and Sundays and that he had community work on Saturdays. He asked the company to reassign him to a different position or to different shifts. But Memphis Light denied the request, explaining that the accommodations would impose an undue hardship on the company and that its union required shifts be as-signed based on seniority. Instead, the company

3a suggested that Small swap shifts with his co-workers or use paid time off. Small renewed the same request without success. Yet later, Memphis Light reconsid-ered its decision and offered Small the option to “blan-ket swap” shifts—meaning that he could swap his shifts with another employee for an entire quarter.

Since then Small has remained in the dispatcher position. The parties dispute whether his schedule still conflicts with his religious commitments.

In 2017, Small sued Memphis Light for disability and religious discrimination as well as retaliation. On the eve of trial, the district court granted summary judgment to the company.

Almost immediately, Small filed a motion with the district court to enforce an alleged settlement agree-ment between the parties. According to Small, the parties had agreed on a settlement right before the summary judgment ruling. But the district court re-jected the motion, finding that the parties had never agreed on all the material terms. This appeal followed.

II. A.

Small first challenges the district court’s grant of summary judgment. We review that decision de novo. Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018).

Disability Discrimination. To begin with, Small ar-gues that Memphis Light discriminated against him based on his disability when it refused to offer him a position as a revenue inspector. But Memphis Light has offered a legitimate, non-discriminatory reason for its decision: namely, that Small physically could not do the work of an inspector. See, e.g., McFadden v.

4a Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 4 (D.C. Cir. 2010). To rebut that explanation, Small must offer evidence that the company’s stated reason was pretextual. Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016).

Small contends that Memphis Light has presented shifting accounts of who determined he could not do the work of an inspector—a disability committee or an HR employee, Eric Conway. This suggests (he says) that the company has concealed the true reasons for its decision. For instance, Small stresses that Conway claimed to have made the final decision to reassign Small to a new position. Yet as Conway himself ex-plained, the disability committee (on which he sat) de-termined whether Small physically could do the work; Conway then determined where to reassign him. Small offers no evidence to the contrary. Small also questions whether Memphis Light even had a disabil-ity committee. But multiple members of the commit-tee confirmed that it existed and that it determined whether Small could do the work of an inspector. Again, Small cannot beat this evidence with nothing. See Cripe v. Henkel Corp., 858 F.3d 1110, 1113 (7th Cir. 2017); Wysong v. City of Heath, 260 F. App’x 848, 858 (6th Cir. 2008).

Small further points to various company policies that, he says, gave him a “right” to be reassigned to a different position. But Small never explains how these policies show that the company’s reason for not reas-signing him to a particular position was pretextual. And for what it is worth, he has not identified any other open positions for which he was qualified. Cf. Henschel v. Clare Cty. Rd. Comm’n, 737 F.3d 1017, 1025 (6th Cir. 2013) (explaining that companies need not create new positions for disabled employees).

5a Finally, Small says that there are factual disputes

about whether he could do the work of an inspector. But the question is not whether Memphis Light was correct that Small could not do the work. Rather, it is whether the company “honestly believed” that to be the case at the time. Ferrari, 826 F.3d at 895. And Small has not offered any evidence that casts doubt on the company’s honest belief. Hence, he cannot show pretext.

Aside from pretext, Small argues in his reply brief that Memphis Light failed to accommodate his disabil-ity and that the district court evaluated this claim un-der the wrong legal standard. But Small forfeited this argument—which involves an entirely different theory of liability—when he did not raise it in his opening brief. See United States v. Carson, 560 F.3d 566, 587 (6th Cir. 2009); see also Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018) (explaining the im-portance of distinguishing between these theories of li-ability because they involve entirely different frame-works). To hold otherwise would allow the appealing party to raise new issues to which the other party could not respond—as happened here. See, e.g., Spar-kle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015); Gen. Elec. Co. v. Jackson, 610 F.3d 110, 123 (D.C. Cir. 2010).

Religious Discrimination. Small next argues that Memphis Light discriminated against him when it failed to accommodate his religion. But the company did not have to offer any accommodation that would have imposed an “undue hardship” on its business—meaning (apparently) anything more than a “de mini-mis cost.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). Memphis Light says that additional

6a accommodations would have impeded the company’s operations, burdened other employees, and violated its seniority system. Our court has found similar costs to be more than de minimis. See Virts v. Consol. Freight-ways Corp. of Del., 285 F.3d 508, 517–21 (6th Cir. 2002); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1380 (6th Cir. 1994). And in any event, Small has not chal-lenged whether the accommodations would have im-posed an undue hardship on the company—beyond a passing assertion in his brief. Instead, he argues only about whether the company did accommodate his reli-gious beliefs. See, e.g., Ansonia Bd. of Educ. v. Phil-brook, 479 U.S. 60, 68–69 (1986) (distinguishing these issues); Cooper, 15 F.3d at 1379–80 (same). Hence this claim cannot proceed. See White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d 842, 854 (6th Cir. 2010).

In the alternative, Small argues that Memphis Light subjected him to a hostile work environment. But Small has not offered any evidence that the har-assment he experienced (if any) was because of his re-ligion. So, this argument fails from the outset. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999).

Retaliation. Small also argues that Memphis Light retaliated against him because he complained about the alleged discrimination. But again, Small has not offered any evidence that the retaliation he experi-enced (if any) was because of his complaints. So, this argument fares no better. See Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 471–72 (6th Cir. 2012).

B. Small also challenges the district court’s refusal to

enforce an alleged settlement agreement between the parties. We review the court’s finding that the parties had never reached an agreement for clear error.

7a Therma-Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 418–19 (6th Cir. 2000).

Small first argues that the parties had formed a binding settlement agreement. To form a binding agreement, the parties had to agree on all the material terms. Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988); see also Sweeten v. Trade Envelopes, Inc., 938 S.W.2d 383, 385 (Tenn. 1996). The record shows that Memphis Light made its final settlement offer to Small on a Friday around noon. Among other things, that offer required Small to agree to a non-disparage-ment provision. Within minutes, Small’s counsel re-sponded that her client could not agree to a non-dis-paragement provision because it might bar him from filing future claims. She also said that she would talk to Small about the offer. Memphis Light soon acknowledged her response with an “O.K. Thanks.” The company followed up a few hours later asking for an update on its offer. Small’s counsel responded, “Not yet.” She explained that she could not talk to Small because he was in a mandatory meeting. Finally, two hours later—after no further emails—Memphis Light revoked its offer.

Given this evidence, it almost goes without saying that the parties never agreed on all the material terms. Memphis Light insisted on a non-disparage-ment provision; Small resisted that provision. Noth-ing in the record suggests that the district court erred—let alone clearly so—when it found that the parties had not reached an agreement. See Therma-Scan, 217 F.3d at 420.

Small also argues that Memphis Light promised to keep its settlement offer open until the district court issued a summary judgment ruling. Yet Small offers

8a no evidence of such a promise. Instead, he offers evi-dence that the company warned that it would revoke its offer if the court issued a ruling. And he says that his counsel understood this to be a promise to keep the offer open. But none of this amounts to an actual promise to keep the offer open. So, this argument fails too. See Safeco Ins. Co. of Am. v. City of White House, 36 F.3d 540, 548 (6th Cir. 1994) (explaining that, un-der Tennessee law, an offeror ordinarily may with-draw an offer at any time before acceptance).

We affirm. _________________

CONCURRENCE _________________

THAPAR, Circuit Judge, concurring. Almost fifty years ago, Congress struck a balance between the rights of religious employees and the interests of their employers. According to that compromise, companies must accommodate religious practices and beliefs un-less doing so would impose an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). To be sure, Congress codified this require-ment “somewhat awkwardly” in Title VII’s statutory definition of “religion.” Ansonia Bd. of Educ. v. Phil-brook, 479 U.S. 60, 63 n.1 (1986). And Congress failed to specify exactly what it meant by “undue hardship.” But most likely, everyone assumed that courts would clarify this standard over time, using the traditional tools of statutory interpretation.

So, what do those tools tell us? Well, start with the text. Congress didn’t define the term “undue hard-ship,” so we should give that term its ordinary,

9a contemporary meaning. See, e.g., Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014). Dictionaries from the period define a “hardship” as “adversity,” “suffering” or “a thing hard to bear.” The American Heritage Dictionary of the English Language 601 (1969); Black’s Law Dictionary 646 (5th ed. 1979); Webster’s New Twentieth Century Dictionary of the English Language 826 (2d ed. 1975). On its own terms, then, the word “hardship” would imply some pretty substantial costs.

But Congress didn’t leave matters there. Instead, it specified that the “hardship” must be “undue.” See, e.g., Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 455 (7th Cir. 2013) (“Title VII requires proof not of minor inconveniences but of hardship, and ‘undue’ hardship at that.”); Anderson v. Gen. Dynamics Con-vair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975). That means that the hardship must “exceed[] what is appropriate or normal”; in short, it must be “excessive.” The American Heritage Diction-ary of the English Language 1398; Black’s Law Dic-tionary 1370; Webster’s New Twentieth Century Dic-tionary of the English Language 826. So together the phrase “undue hardship” tell us that the accommoda-tion must impose significant costs on the company.

Not surprisingly, Congress has typically defined “undue hardship” in exactly this way. Take the Amer-icans with Disabilities Act, which (like Title VII) re-quires companies to provide reasonable accommoda-tions unless doing so would impose an “undue hard-ship” on their business. 42 U.S.C. § 12112(b)(5)(A). In that context, Congress defined an “undue hardship” as “an action requiring significant difficulty or expense” in light of certain enumerated factors (such as the size

10a of the company). Id. § 12111(10). Nor does the mean-ing of “undue hardship” change if one ventures further afield in the United States Code. See, e.g., 28 U.S.C. § 1869(j) (explaining that an “undue hardship or ex-treme inconvenience” for jury service means “great dis-tance . . . from the place of holding court,” “grave ill-ness in the family,” or “any other emergency which outweighs in immediacy and urgency the obligation to serve as a juror”); 29 U.S.C. § 207(r)(3) (explaining that an “undue hardship” under the Fair Labor Standards Act means “significant difficulty or expense”); 38 U.S.C. § 4303(15) (explaining that an “undue hard-ship” for veteran employment means “significant diffi-culty or expense”).

Or consider how courts define “undue hardship” when Congress has failed to provide a statutory defi-nition. For instance, the Bankruptcy Code allows debtors to discharge a student loan if they can show that the debt imposes an “undue hardship.” 11 U.S.C. § 523(a)(8). “The plain meaning” of that term, courts have said, requires the debtor to show that the debt imposes “intolerable difficulties . . . greater than the ordinary circumstances that might force one to seek bankruptcy relief.” In re Thomas, 931 F.3d 449, 454 (5th Cir. 2019). Indeed, “the adjective ‘undue’ indi-cates that Congress viewed garden-variety hardship as [an] insufficient excuse[.]” In re Frushour, 433 F.3d 393, 399 (4th Cir. 2005) (quoting In re Rifino, 245 F.3d 1083, 1087 (9th Cir. 2001)). And the same holds true when courts consider (or use) the phrase “undue hard-ship” in other contexts. See, e.g., Teamsters Local Un-ion No. 171 v. N.L.R.B., 863 F.2d 946, 957 (D.C. Cir. 1988) (explaining that an “undue hardship” requires “significant mitigating circumstances”); In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1241 (5th

11a Cir. 1982) (explaining that an “undue hardship” might exist when there is an “unusual expense”).

Given all this, one would think that the term “un-due hardship” would have a similar meaning under Ti-tle VII. After all, courts typically try “to make sense rather than nonsense out of the corpus juris.” Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991). But the Supreme Court has said otherwise.

The source of the problem is Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). That decision pri-marily addressed whether Title VII’s accommodation provision required employers to violate seniority sys-tems created by their collective-bargaining agree-ments. See id. at 78–84. But in two brief paragraphs at the end of the opinion, the Court also asserted—al-most as an afterthought—that requiring an employer “to bear more than a de minimis cost” in order to ac-commodate an employee’s religion would be “an undue hardship.” Id. at 84. The cost found to be more than de minimis: $150. Id. at 92 n.6 (Marshall, J., dissent-ing). And the employer unduly burdened by that cost: one of the largest airlines in the world.

At this point, you might be wondering where the “de minimis” test even came from? Certainly not the text of Title VII. The Hardison majority never pur-ported to justify its test as a matter of ordinary mean-ing. And how could it? “De minimis” means a “very small or trifling matter[.]” Black’s Law Dictionary 388. That seems like the opposite of an “undue hard-ship.” See Hardison, 432 U.S. at 92 n.6 (Marshall, J., dissenting) (“I seriously question whether simple Eng-lish usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’”). The “de mini-mis” test also seems in conflict with the background

12a legal maxim de minimis non curat lex (“the law does not care for trifling matters”). Wisconsin Dep’t of Rev-enue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992); Black’s Law Dictionary 388. The law usually does not care for trifling matters but apparently Title VII does.

Nor can one blame the parties in Hardison. None of them proposed the “de minimis” test—and probably for good reason. In fact, most of their briefing focused on other issues in the case.

As best one can tell, the Hardison majority adopted the “de minimis” test for two reasons: one explicit and one implicit. As for the explicit reason, the majority said that religious accommodations that involved more than “de minimis” costs would cause employers to “dis-criminate” against their non-religious employees. See Hardison, 432 U.S. at 84–85. But that reasoning seems unreasonable on its face. Consider again the Americans with Disabilities Act, which requires em-ployers to provide accommodations to their disabled employees. No rightminded person would call such ac-commodations a form of impermissible discrimination against non-disabled employees. Cf. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002); see also E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (“But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Ra-ther, it gives them favored treatment[.]”).

As for the implicit reason—acknowledged only by the Hardison dissent—the majority may have con-strued Title VII so narrowly because it feared that a broader reading might run afoul of the Establishment Clause. See Hardison, 432 U.S. at 89–90 (Marshall, J.,

13a dissenting). Yet whatever doctrinal merit that concern once may have had, I seriously doubt that it remains valid. Even properly read, Title VII doesn’t require employers to provide any and all accommodations; it requires them to provide only those accommodations that won’t impose an “undue hardship” on the com-pany—meaning significant costs. That seems more than fine under the Establishment Clause. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 722–24 (2005); Es-tate of Thornton v. Caldor, Inc., 472 U.S. 703, 711–12 (1985) (O’Connor, J., concurring); Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 704 (1992); see generally Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871 (2019) (chal-lenging the theory that religious accommodations vio-late the Establishment Clause whenever they impose more than de minimis costs).

In any event, the doctrine of constitutional avoid-ance doesn’t give courts license to rewrite a statute. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). But the Hardison majority appears to have done exactly that. The only other explanation is that the majority stumbled through the looking glass and into “an Alice-in-Wonderland world where words have no meaning[.]” Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring in the judgment).

Of course, all this does not mean that employers must always accommodate their employees’ religious beliefs and practices. The term “undue hardship” makes clear “that this is a field of degrees, not a matter for extremes” or “absolutes.” E.E.O.C. v. Firestone Fi-bers & Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008); cf. Barnett, 535 U.S. at 402. But Hardison itself

14a adopted an “absolute” when it “effectively nullifi[ed]” the accommodation requirement. Hardison, 432 U.S. at 89 (Marshall, J., dissenting). And without any real reason.

The irony (and tragedy) of decisions like Hardison is that they most often harm religious minorities—peo-ple who seek to worship their own God, in their own way, and on their own time. See McConnell, supra, at 693, 721–22; Storslee, supra, at 873–74, 877. The American story is one of religious pluralism. The Founders wrote that story into our Constitution in its very first amendment. And almost two-hundred years later, a new generation of leaders sought to continue that legacy in Title VII. But the Supreme Court soon thwarted their best efforts. Even at the time, this “ul-timate tragedy” was clear. Hardison, 432 U.S. at 97 (Marshall, J., dissenting) (“[O]ne of this Nation’s pil-lars of strength—our hospitality to religious diver-sity—has been seriously eroded.”).

In the end, this case doesn’t involve a challenge to the “de minimis” test. Indeed, Jason Small hasn’t even contested—at least in a meaningful way—his em-ployer’s claim of “undue hardship.” But litigants should consider such challenges going forward. See Patterson v. Walgreen Co., 140 S. Ct. 685 (2020) (Alito, J., concurring in the denial of certiorari). As the Har-dison dissent explained, “All Americans will be a little poorer until [the] decision is erased.” Hardison, 432 U.S. at 97 (Marshall, J., dissenting).

15a APPENDIX B

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION ______________________________________________

JASON SMALL, Plaintiff, v. MEMPHIS LIGHT, GAS & WATER, Defendant.

No. 2:17-cv-02118-SHL

______________________________________________

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

______________________________________________

Plaintiff, Mr. Jason Small, filed this suit on Febru-ary 21, 2017, alleging discrimination, harassment and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). ECF No. 1. Mr. Small’s claims stem from his time as an employee with Defendant Memphis, Light, Gas & Water (“MLGW”), specifically from his experience being reassigned from his original post to a new post as a result of his work-related injury and re-sulting disability. Id. Mr. Small alleges that MLGW, through its reassignment and subsequent treatment of him in his new position, discriminated against him based on his disability and religion, created a hostile work environment and retaliated against him for re-porting that discrimination. Id.

16a Now before the Court is Defendant’s Motion for

Summary Judgment, filed on January 19, 2018. ECF No. 49. Defendant argues that Mr. Small is unable to provide sufficient evidence to establish a prima facie case for any of his claims, or to create a disputed fact as to his prima facie burdens. In addition, Defendant contends that there is no evidence that MLGW’s non-discriminatory reasons for assigning him to his cur-rent position and denying his requests for accommoda-tion were pre-textual. Based on these deficiencies, De-fendant submits that summary judgment is appropri-ate. Id. Plaintiff responded in opposition on March 2, 2018, arguing that he is able not only to establish a prima facie case but to demonstrate that Defendant’s non-discriminatory reasons for its treatment of Mr. Small were pre-textual, or at minimum to establish sufficient disputes of material facts to support denial of the motion. ECF No. 63 at 5, 7. Defendant replied on April 18, 2018, restating its initial argument for summary judgment. ECF No. 70 at 2, 3.

For the reasons more fully outlined below, the Court concludes that there are no genuine issues of material fact and Mr. Small’s claims fail as a matter of law. Defendant’s Motion for Summary Judgment is GRANTED.

FACTS Mr. Small, a practicing Jehovah’s Witness, alleges

discrimination by Memphis Light, Gas & Water based on his religious beliefs and disability. ECF No. 1. The following facts are taken from the evidence provided to the Court in the pleadings and subsequent filings, in-cluding depositions, documents and stipulations of

17a undisputed facts.1 Disputed facts that are immaterial to the relevant legal questions will not be included in the Court’s summary of facts or in the evaluation of Mr. Small’s claims.

From 2002 to March of 2013, Mr. Small was a Sub-station Electrician making approximately $64,521 per year. ECF No. 62 at 20. The Substation Electrician position had standard hours that allowed Mr. Small to complete his weekly religious obligations, which in-clude services on Wednesdays and Sundays and com-munity work on Saturdays. ECF No. 1 at 4. In early 2013, Dr. Fahey, Mr. Small’s treating physician, deter-mined that he could no longer safely perform the Sub-station Electrician position as a result of an injury that occurred on the job. Id. at 3. Plaintiff was removed from this position, given permanent restrictions re-lated to his injury, and placed on reduced salary pend-ing reassignment to a job he could perform without substantial risk of further injury. Id.

Mr. Eric Conway, a Human Resources (“HR”) em-ployee, was assigned to help Mr. Small find a new po-sition. Id. Individuals subject to reassignment are given a year in which to find a new position. Id. Early in his time in this process, Mr. Small expressed an

1 Facts cited from Mr. Small’s Complaint are either un-

disputed by MLGW or later supported by other evidence. Additionally, the Court cannot accept certain of Mr. Small’s unsubstantiated assertions of fact as true. Mr. Small relies on some of these conclusions to support his assertion that there are genuine disputes of material fact that defeat sum-mary judgment. The Court provides explanatory footnotes outlining the reasoning behind the exclusion of these con-clusions, which have been presented as facts.

18a interest in the position of Inspector in the Revenue Protection Department. Id. at 4. One of the reasons this position interested Mr. Small was that it allowed him to work hours similar to his previous position and thus would not interfere with his religious obliga-tions.2 Id. at 6. Mr. Small told Mr. Conway of his in-terest in the position. Id. at 4. Mr. Conway first mis-takenly informed Mr. Small that he was not qualified for the position, but Mr. Conway’s supervisor corrected him, and Mr. Small’s application proceeded. ECF No. 54-1 at 6.

Dr. Fahey was charged with evaluating Mr. Small’s ability to safely perform the essential functions of any new position to which he might be assigned. ECF No. 1 at 5. Dr. Fahey evaluated Mr. Small for the Inspec-tor position based on MLGW’s published job descrip-tion for the position. Id. This description noted that, “THIS LIST OF ESSENTIAL FUNCTIONS IS NOT EXHAUSTIVE AND MAY BE SUPPLE-MENTED AS NECESSARY.” ECF No. 62 at 8. Based on the information he had, Dr. Fahey deter-mined that the job seemed reasonable for Mr. Small and that Plaintiff “should be capable of performing”

2 There is some dispute as to when Mr. Conway was in-

formed of Mr. Small’s religious obligations. Mr. Small al-leges that he told Mr. Conway about his services early in the reassignment process, but Mr. Conway asserts that he did not know until July of 2013, after he had assigned Mr. Small to the Dispatcher position discussed below. ECF No. 54-1 at 34. However, as is more fully discussed below in the Analysis section, MLGW was not obligated to keep Mr. Small in the reassignment process in order to accommodate him, making the dispute immaterial. ECF No. 54-1 at 31.

19a the required tasks without significant risk of further injury. ECF No. 62-7.

However, at some point after Dr. Fahey’s initial de-termination, Vernica Davis (Medical Coordinator at MLGW) requested that David Staggs, the Supervisor of Revenue Protection at the time, produce additional information about the Inspector position, including a physical demand analysis and list of additional re-sponsibilities. ECF No. 62 at 13. According to Mr. Conway, Ms. Davis asked for this additional infor-mation because she had concerns “[b]ased on [Mr. Small’s] physical limitations or restrictions, [about] him being able to perform this job. Due to her experi-ence with other employees being hurt in that job, she knew that it has physical aspects that he may not be able to do.”3 ECF No. 62-19 at 6. Without knowledge

3 Mr. Small alleges that Ms. Davis and Mr. Conway

asked for this separate information because of animus against disabled individuals; however, Mr. Small provides no evidence of this other than the request and creation of the information itself and his subsequent assignment to the Service Dispatcher position. Moreover, the additional job requirements were provided by Mr. Staggs, who had no knowledge of Mr. Small’s circumstances. ECF No. 62 at 13.

Additionally, Mr. Small later asserts that Mr. Conway sees disabled individuals as a “burden” on MLGW. ECF No. 63 at 13. This conclusion is apparently based on a state-ment Mr. Conway made in his deposition that paying indi-viduals who are in the reassignment pool and able to work but without a job is a “financial burden” on MLGW that can be “extreme.” ECF 62-19 at 14. Mr. Conway’s position on this issue is inconsistent with Mr. Small’s allegation that Mr. Conway wanted to keep him from the Inspector posi-tion, as the financial burden that Mr. Conway references

20a that Mr. Small was applying for the position, (ECF No. 62 at 13), Mr. Staggs produced information about physical demands and responsibilities not contained in the original job description, such as lifting heavy ob-jects with some regularity and the need for annual fire-arm certification.4 ECF No. 62-10. The information also noted that Inspectors generally work alone in the field.5 Id.

Mr. Staggs’s set of new qualifications and essential functions was given to Dr. Fahey for the purpose of reevaluating Mr. Small’s ability to perform the job. ECF No. 62 at 17. Dr. Fahey expressed concern about some of the responsibilities, writing, “[W]hat I can say

would in fact incentivize him to find Mr. Small a position for which he was qualified as quickly as possible.

Given Mr. Small’s failure to support his conclusory statements with evidence from the record and the fact that the record tends to support the opposite conclusion, the Court disregards Mr. Small’s conclusory statements on this issue.

4 Specifically, Mr. Staggs states that “Inspectors spend 33% of their time carrying objects weighing over 60 pounds, including lifting or removing box tops that weigh over 100 lbs. Additionally, gas valves and meters can weigh up to 100 lbs. Inspectors frequently (as in 34% - 66% of the time) twist and turn gas valves and meters.” ECF No. 71 at 8.

5 Additionally, Mr. Stagg notes that “work[ing] in the field independently” is an “essential function” of the Inspec-tor position and that “if an inspector could not lift or remove a box top or twist and turn a gas valve or meter, and needed assistance doing so, MLGW could not make sure this assis-tance would always be available unless the company hired someone specifically to provide assistance or removed some-one from their regular job to assist.” ECF No. 71 at 8.

21a is there are several duties described in this Inspector duty which I do not think he can do, but I do not see them as core activities to the job.” ECF No. 62-11 at 2. He also noted that Mr. Small was insistent that he could perform the job. Id. Despite Dr. Fahey’s recom-mendation, Plaintiff was not given the Inspector posi-tion based on MLGW’s position that he could not per-form the essential functions of the job with or without reasonable accommodation, and he continued to wait for reassignment. ECF No. 62 at 19.

Around the same time, Mr. Conway asked Mr. Small about another available position, that of Service Advisor. ECF No. 1 at 6. Mr. Small declined the posi-tion because the shift work and mandatory overtime would have conflicted with his religious obligations. ECF No. 1 at 6. Shortly after, Mr. Conway informed Plaintiff that a Service Dispatcher position was avail-able, that he was qualified for the position, and that he was obligated to accept the position or risk termina-tion. ECF No. 54-1 at 14. This ultimatum is in line with MLGW policy, which states, in relevant part: “If an employee refuses to accept a reassignment, the em-ployee shall be determined eligible for termination for just cause.” ECF No. 71-2 at 11. Mr. Small, feeling pressured by Mr. Conway to take the position, ac-cepted, despite the fact that the position required shift work and mandatory overtime that would cause con-flict with his religious obligation. ECF No. 62 at 22. Mr. Small notes that at this time he did not believe Mr. Conway was acting out of religious animus. ECF No. 54-1 at 17–18. The Service Dispatcher position had a similar pay range to the Inspector position, with the

22a midpoint actually being higher in the Dispatcher posi-tion.6 ECF No. 1 at 4.

Around the time he began his job as Dispatcher in the summer of 2013, Mr. Small emailed Mr. Conway to inform him that he would like a religious accommo-dation to be able to attend his religious services and complete his community work and that this accommo-dation could either take the form of being put back into the reassignment pool7 or given an exemption from

6 Mr. Small alleges that the Inspector position was bet-

ter, but his only evidence, aside from the shift times, is that he might, in future, have been able to advance to a higher level of pay. ECF No. 63 at 9. He does not dispute that the Dispatcher position actually provided a higher salary mid-point. ECF No. 1 at 4.

7 Mr. Small asserts that MLGW’s failure to allow him to re-enter the reassignment pool was a violation of policy and further evidence of discrimination, as another employee placed in the same department from the reassignment pool was allowed to do so. ECF No. 54-1 at 16. However, the individual to whom Mr. Small compares himself left the po-sition because of unsatisfactory job performance, and Mr. Small had not received any unsatisfactory reviews. ECF No. 54-1 at 13–14. Mr. Phelon Grant, a Supervisor who re-sponded to Mr. Small’s request, informed him of the policy: “[A]n employee may be returned to their prior position dur-ing the trial period on the basis of performance deficiencies. There have been no performance deficiencies during your trial period.” ECF No. 71-1 at 1.

Mr. Small provides no evidence of an unsatisfactory per-formance on his part, noting only that his religious obliga-tions should have sufficed. ECF No. 54-1 at 13–14. This is insufficient to create a genuine dispute and, accordingly, the Court cannot accept as fact Mr. Small’s assertion that

23a certain shifts and the mandatory overtime. ECF No. 62 at 22. A few months later, Mr. Conway informed Mr. Small that his request had been denied as it would cause an undue hardship because MLGW assigns shifts according to a seniority policy. ECF No. 54-1 at 38. Mr. Conway also noted that Mr. Small could swap shifts as long as he did so according to MLGW policy and that he could use vacation time.8 ECF No. 62 at 22. Mr. Small filed a complaint with the Equal Em-ployment Opportunity Commission (“EEOC”) that fall, alleging disability and religious discrimination. Id.

In October of 2014, after an accommodation request had been denied, Mr. Small was informed that MLGW had reconsidered, and Mr. Small was granted the op-tion to “blanket swap” his shifts, which would allow him to change shifts with another employee each quar-ter if necessary to attend his services. Id. at 23. At the time the accommodation was granted, Mr. Small no longer worked Wednesdays but he chose not to use the “blanket swap” for Sundays (ECF No. 54-1 at 15–16), and missed work on multiple occasions to attend reli-gious services.9 ECF No. 62-10. On the last occasion,

there was an applicable policy or that he was treated differ-ently than others in the same situation.

8 In correspondence with Mr. Grant dated August 8, 2013, Mr. Small was informed that he would be allowed Saturdays and Sundays off but that being off on Wednes-days as well would not be possible because of the burden it would cause. ECF No. 71 at 9.

9 Mr. Small argues that he was wrongfully denied vaca-tion time for at least one of these services. ECF No. 62 at 27. Though it is true that vacation had been approved for that Wednesday evening, Mr. Small’s shift had switched at that point so that he was no longer working Wednesdays.

24a Mr. Small was suspended for two days for failing to report for his scheduled shifts. Id. Mr. Small has, from the time of his first written request in 2013, renewed his request for accommodation through reassignment or limited hours several times and has been denied each time on the same grounds and with the same re-minders. Id. at 23.

Mr. Small is still a Service Dispatcher. Though he has been required to perform mandatory overtime that conflicts with his beliefs at times, his regular shift al-lows him to attend the necessary services on Wednes-days and Sundays (ECF No. 54-1 at 12), and MLGW has allowed him to use a “blanket swap,” which would allow him to avoid conflicts by swapping shifts with another employee each quarter. Id. at 15–16. Though Mr. Small has noted that the “ideal time” to complete his religious outreach is during his current Saturday shift, it is undisputed that he can fulfill his obligations after his shift as well. ECF No. 70-3.

ANALYSIS “The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). Once a properly supported motion for summary judgment has been made, the party opposing summary judgment must show that there is a genuine dispute of material fact by pointing to evidence in the record or must argue that the moving party is not entitled to judgment as a

Id. at 28. As a result of this shift change, Mr. Small’s vaca-tion was voided as he no longer needed vacation on Wednes-day evenings. Id. Instead, Mr. Small was called in to work mandatory overtime on a Wednesday night but did not show up. Id.

25a matter of law. Fed. R. Civ. P. 56(a), (c)(1). The evi-dence is viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A genuine issue for trial exists if the evidence would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

While the Court views all evidence and factual in-ferences in the light most favorable to the non-moving party, “the mere existence of some alleged factual dis-pute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of mate-rial fact.” Id. at 247–48. Moreover, the opposing party “cannot rest solely on the allegations made in [his] pleadings” but must cite to appropriate evidentiary support. Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009) (quoting Skousen v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002)) (alteration in original). The Court’s role is not to weigh evidence or assess wit-ness credibility but to determine “whether the evi-dence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014) (quoting Anderson, 477 U.S. at 251–52).

Here, Defendant moves for summary judgment on all of Plaintiff’s claims, arguing that he fails to estab-lish the prima facie elements (or a disputed fact as to the elements) of his claims for discrimination, harass-ment and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) and under the Americans with Disabilities Act (“ADA”) and fails to point to any evi-dence of pretext by MLGW. At times, Plaintiff alleges that there was discrimination based on religious

26a animus “and/or” disability. ECF No. 1 at 5, 8. The Court assumes that Mr. Small believes that the dis-crimination could have been rooted in both at the same time; however, the standards for evaluating whether discrimination has occurred are different for each.

Consequently, the Court will first address Plain-tiff’s discrimination claims brought under the ADA be-fore moving to those brought under Title VII. Because claims of retaliation under Title VII and the ADA are evaluated using the same set of factors and because Mr. Small alleges the same actions constitute retalia-tion, those claims are then evaluated together.

I. Mr. Small’s Claims under the Americans

with Disabilities Act Defendant argues that the undisputed facts

demonstrate that Mr. Small was not qualified for the Inspector position and that his placement in the Dis-patcher position did not constitute an adverse action, defeating two prima facie elements of his ADA claim. ECF No. 49-1 at 4–7. It further argues that, even if the Court were to determine that Mr. Small could es-tablish a prima facie case, the undisputed proof indi-cates that the decisions to deny Mr. Small the Inspec-tor position and place him in the Dispatcher position were rooted in non-discriminatory reasons, namely Mr. Small’s inability to perform essential functions of the Inspector position (and his ability to perform the Dispatcher position). Thus, according to Defendant, Mr. Small cannot demonstrate that the reasons for denying him the Inspector position and reassigning him to the Dispatcher are pre-textual. Id. at 8–9. De-fendant presents the same argument to rebut Mr. Small’s failure to accommodate claim, noting his

27a inability to perform the essential functions of the In-spector job serves to defeat that claim as well. Id. at 10.

To demonstrate a prima facie case of discrimina-tion under the ADA, a plaintiff must show that “1) he or she is disabled; 2) otherwise qualified for the posi-tion, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the em-ployer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled indi-vidual was replaced.” Whitfield v. Tennessee, 639 F.3d 253 (6th Cir. 2011). Similarly, to demonstrate a fail-ure to accommodate, an employee must demonstrate that she is able to complete the job with or without ac-commodation. Penny v. UPS, 128 F.3d 408, 414 (6th Cir. 1997). An employee who cannot perform the job's essential functions is not a qualified individual under the ADA. Hoskins v. Oakland Cnty. Sherriff’s Dep’t, 227 F.3d 719, 724 (6th Cir. 2000).

Once a prima facie case is established, the burden shifts to the employer to provide a nondiscriminatory reason for the actions in question and then back to the plaintiff to demonstrate that the non-discriminatory reason provided is pre-textual. Whitfield, 639 F.3d at 259. At the summary judgment stage, a plaintiff only has to demonstrate a genuine issue of fact as to whether the reasons offered are pre-textual. Id. at 260.

Because Mr. Small has failed to establish a prima facie case, the Court need not reach the issues of bur-den-shifting. First, it is assumed that Mr. Small can show that he is a disabled individual, that MLGW knew or had reason to know of his disability, and that the position of Inspector remained open while MLGW

28a looked for someone to fill it. However, as to evidence that he is qualified with or without reasonable accom-modation and that there has been any adverse employ-ment action, he fails. Mr. Small argues that his as-signment to the Service Dispatcher Position instead of the Inspector position is a manifestation of animus against him as a person with a disability and consti-tutes a failure to accommodate and an adverse employ-ment action. His claim appears to be based on his as-sertion that he can perform the true essential func-tions of the Inspector position. However, examining the evidence in the light most favorable to Mr. Small, he cannot meet the standard necessary to demonstrate either an adverse action or a failure to accommodate, and thus this claim fails as a matter of law.

Beginning with Mr. Small’s qualification for the In-spector position, it is undisputed that Dr. Fahey, Mr. Small’s treating physician, initially indicated that Mr. Small should be able to fulfill the responsibilities of the Inspector position without serious risk of further in-jury. Mr. Small claims that what happened next is a clear indicator of animus sufficient to establish both his ability to fulfill the essential functions of the job and an adverse employment action. The Court cannot agree.

As noted above, Mr. Small was, as Dr. Fahey acknowledged, unable to complete some of the essen-tial functions of the job outlined by Mr. Staggs because of his restrictions. ECF No. 62-11 at 2. Key to Mr. Small’s argument is the assertion that the tasks in-cluded with the new information were not essential functions of the job and thus Mr. Small was wrongly denied the position. Specifically, he asserts that the list of additional responsibilities did not constitute es-sential functions of the job because: (1) Mr. Small

29a spoke with others about the job and felt he had an idea of what was involved (ECF No. 54-1 at 7); (2) Dr. Fahey did not see them as core functions (ECF No. 62-11 at 2) and (3) these responsibilities were not on the initial job description published by MLGW (ECF No. 1 at 6). Some of the factors courts consider when determining whether or not something is an essential function are the experience of past and current individuals on the job, the employer’s judgment, whether or not the infor-mation was put into a job description before the em-ployer began advertising or interviewing, and the amount of time spent performing the function. 29 C.F.R. § 1630.2(n)(3).

As to the first consideration, Mr. Small cannot identify a single individual with whom he spoke about the position, making it difficult to take his assertion of his second-hand knowledge of the job and of the fre-quency of the performed functions as establishing a fact that can be used as evidence of experience of past or current Inspectors. ECF No. 54-1 at 7. Moreover, the additional requirements were provided by the Su-pervisor in the department, who, as Mr. Small acknowledges, had no knowledge of him or his physical restrictions, and who had direct and daily contact with Inspectors and detailed knowledge of their duties, thus a source of information rooted in the experience of past and current employees.

As to the second point, while Dr. Fahey was charged with evaluating Mr. Small’s fitness for the po-sition, he has no expert knowledge of the essential functions of an Inspector, so his comment that he did not see the duties Mr. Small could not perform as “core functions” cannot create a genuine issue of material facts on this issue. He is a medical doctor, not quali-fied to assess which are the essential functions.

30a Finally, though MLGW did not initially publish

this additional information, it was produced by the Su-pervisor of the department for the specific purpose of making sure that someone being assigned to the posi-tion would be qualified without knowledge that the “someone” was Mr. Small. It is also undisputed that MLGW reserved the right to supplement the infor-mation in the job description with additional essential functions, as noted on the bottom of the description it-self. While Mr. Small’s frustration at being denied the position he wanted based on information not initially available to him is understandable, because there is not sufficient evidence in the record, the Court cannot present as fact Mr. Small’s conclusion that these were not essential functions of the job.

Because Inspectors work alone in the field, and be-cause an Inspector may be required to perform these functions with some frequency, it would be difficult and impractical for MLGW to provide Mr. Small with the necessary assistance in the Inspector position without providing him an assistant or someone other-wise on call, an action that would shift some of the es-sential functions to another employee, which MLGW is not required to do. See Hoskins, 227 F.3d at 729. Thus, Mr. Small cannot demonstrate that he was qual-ified for the position with or without accommodation and his claim of discrimination under the ADA fails. Because Plaintiff must also show an ability to perform the job with or without accommodation to make a showing of failure to accommodate, Mr. Small’s claim for failure to accommodate fails as well.

Even assuming Mr. Small could make a showing that he was qualified with accommodation, he cannot show an adverse employment action. When determin-ing whether an adverse action has occurred, courts

31a look to evidence such as demotion, decrease in pay, or a move to a less prestigious position. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). The position to which Mr. Small was assigned allowed him to maintain his rate of pay and Mr. Small does not ar-gue that there was any difference in prestige, aside from the above noted argument that a future pay rate could have been higher in the Inspector position. That difference does not create an adverse job action.

For the foregoing reasons, Defendant’s Motion for Summary Judgment as to the claim of discrimination under the ADA is GRANTED.

II. Mr. Small’s Claims under Title VII

Plaintiff’s Title VII claim based on religious dis-crimination is two-fold, specifically that he experi-enced both discrimination and a hostile work environ-ment rooted in religious animus. However, Defendant argues that Plaintiff cannot establish a prima facie case for either theory of his Title VII claim. ECF No. 49-1 at 12–14, 24. As to his claim of religious discrim-ination, MLGW argues that Mr. Small’s religious be-liefs did not conflict with his employment require-ments, defeating an essential element of the prima fa-cie case. Id. at 12–13.

Additionally, MLGW argues that accommodating Mr. Small would create undue hardship, which the law does not require. Id. at 14. Thus, he cannot meet two of the requirements necessary to establish a prima fa-cie case of religious discrimination. Id. at 12–14. As to his hostile work environment claim, Defendant against asserts that he cannot establish a prima facie case because he cannot show that, (1) the alleged har-assment was based on religion or that (2) the alleged

32a harassment was severe or pervasive enough to consti-tute a hostile work environment, two of the necessary elements. Id. at 24–26.

Title VII prohibits, in relevant part, discrimination “against any individual with respect to his compensa-tion, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” 42 U.S.C.S. § 2000e-2 (2018). As noted, Mr. Small contends that he suffered discrimination in the form of a failure to accommodate and the creation of a hostile work envi-ronment. These claims will be addressed in turn.

A. Religious Discrimination and Accommodation To establish religious discrimination, an employee

must show that: “(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.” Smith v. Pyro Min. Co., 827 F.2d 1081, 1085 (6th Cir. 1987). Once an employee has established a prima facie case, the burden shifts back to the employer to show that it is not possible to accommodate the employee without undue hardship. Id. An employee must attempt to co-operate with an employer’s proposed accommodation. Id. Because the question of “undue hardship” versus a “de minimis burden” will naturally shift from em-ployer to employer, the Court looks to the specific sit-uation in each case. Id. Accommodations that would interfere with union agreements, shift assignments and seniority policies have been deemed to place an undue hardship on employers. See TWA v. Hardison, 432 U.S. 63, 80 (1977) (Title VII does not require em-ployers to “deny the shift and job preference of some employees, as well as deprive them of their contractual

33a rights, in order to accommodate or prefer the religious needs of others.”)

It is undisputed that Mr. Small has sincere reli-gious beliefs and that MLGW is aware of these beliefs. Moreover, the Court cannot agree with MLGW’s asser-tion that Mr. Small could merely attend the services of another congregation to satisfy his obligations as a leader in his specific congregation, and so it will be as-sumed for the purpose of this Motion that there was at some time a conflict between Mr. Small’s obligations and his employment. Additionally, for this Motion, it will be assumed that the suspension Mr. Small re-ceived when he failed to show up for mandatory shifts constitutes discipline sufficient to meet the third ele-ment of the prima facie case. However, MLGW has demonstrated, through undisputed facts, that it has offered accommodations where possible by allowing a “blanket swap” and that where it has not offered ac-commodations, it is because accommodations would re-sult in an undue hardship.

Smith is instructive in evaluating the facts of the instant case. In Smith, the employee believed it was a sin to work on Sundays, informed his employer of his beliefs and was consequently fired. 827 F.2d at 1086. The mining company for which Mr. Smith worked had a policy somewhat similar to MLGW, allowing employ-ees who could not work on Sundays to swap with other employees. Id. at 1083. If no other employee would swap, the individual then had to report to a supervisor so that the problem could be resolved. Id. Mr. Smith failed to take the necessary steps to swap his shift be-cause he also believed it would be a sin to ask another person to work on Sunday, though he informed the company of this belief and noted that he would accept a swap arranged by the company. Id. at 1084. Because

34a the mining company had a policy of terminating any-one who had three unexcused absences and because Mr. Smith did not report to work as required, he was terminated. Id.

In evaluating whether the ability to swap shifts was an appropriate accommodation, the Sixth Circuit found for Mr. Smith with an important caveat: his be-lief that asking another individual to work on Sunday was a sin was key to determining the sufficiency of the accommodation. Id. at 1088. In fact, the court noted: “We think it clear that if Smith had no religious qualms about asking others to work the Sundays he was scheduled to work, then Pyro's proposed accom-modation would have been reasonable.” Id.

There are some similarities between Mr. Smith and Mr. Small beyond their sincere religious beliefs: both were disciplined for failing to show up to work and both were asked to work shifts that interfered with their religious obligations. In contrast to Mr. Smith, however, Mr. Small’s opportunity to swap shifts was an effective accommodation as it did not interfere with his beliefs. Moreover, when Mr. Small failed to show up to work, it was not because he was assigned to a regular shift that conflicted with his obligations but because he was being asked to work mandatory over-time, assigned based on seniority status. MLGW’s ob-ligation to upset seniority status related to how shifts are assigned is, as noted, limited because it is seen as an undue hardship. See Hardison 432 U.S. at 81–82 (noting not only that violating seniority systems causes undue hardship but also that “seniority sys-tems are afforded special treatment under Title VII it-self”); see also Virts v. Consol. Freightways Corp., 285 F.3d 508, 518 (6th Cir. 2002) (holding violation of a seniority system to accommodate religious preference

35a would cause an undue hardship). Similarly, shifting all of the relevant mandatory overtime obligations to other employees or placing Mr. Small back in the reas-signment pool on reduced pay to wait for a job with hours more in line with Mr. Small’s religious obliga-tions would, as a matter of law, place more than a de minimis burden on MLGW.

MLGW has thus sufficiently satisfied its obligation to demonstrate undisputed attempts at accommoda-tion where possible and undue hardship where at-tempts were not made, and thus its motion for sum-mary judgment as to the Title VII claims of religious discrimination and failure to accommodate are GRANTED.

B. Hostile Work Environment Mr. Small also alleges a hostile work environment

in violation of Title VII, which Defendant argues, among other points, does not meet the legal standard of an “objectively” hostile environment. To demon-strate a hostile work environment under Title VII, Plaintiff must demonstrate that he was (1) a member of a protected class; (2) subjected to unwelcomed reli-gious harassment; (3) the harassment was based on re-ligion; (4) the harassment had the effect of unreasona-bly interfering with Plaintiff’s work performance by creating an intimidating, hostile, or offensive work en-vironment; and (5) the existence of employer liability. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). To determine whether a hostile work environ-ment existed, courts examine the totality of the cir-cumstances and evaluate the situation both objectively and subjectively. See Harris v. Forklift Sys., 510 U.S. 17, 21–22 (1993); see also Rabidue v. Osceola Ref. Co., Div. of Tex. Am. Petrochemicals, 805 F.2d 611, 620 (6th

36a Cir. 1986). “Conduct that is not severe or pervasive enough to create an objectively hostile or abuse work environment – an environment that a reasonable per-son would find hostile or abusive – is beyond Title VII’s purview.” Harris, 510 U.S. 17 at 21; see also Faragher v. City of Boca Raton, 524 U.S. 775, 788, (1998) (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of em-ployment, and the Courts of Appeals have heeded this view.”)

It is undisputed that Mr. Small is (1) a member of a protected group and that he has sincerely held reli-gious beliefs, but Mr. Small fails to point to facts in dispute which would meet his burden as to the remain-ing elements. As noted above, such claims are evalu-ated both objectively and subjectively, and the Court concludes that there is a genuine issue of fact as to the subjective part of the test, given Mr. Small’s stress re-lated to the tension between his work and his religious obligations. Moreover, Mr. Small has indicated that he experienced increased stress and emotional and mental turmoil resulting from his assignment to the Service Dispatcher position and was seeing a mental health professional to help work through these issues. ECF No. 62-14.

Moving to the objective evaluation, however, Mr. Small’s allegations, assumed to be true for purposes of this Motion, do not rise to the level necessary to estab-lish the existence of a hostile workplace. Even as the Court reads the evidence in the light most favorable to Mr. Small, there is not sufficient evidence that, objec-tively, Mr. Small experienced (2) unwelcome harass-ment (3) based on his religion that (4) created a hostile work environment. As noted above, there are high standards for establishing the existence of a hostile

37a work environment in the workplace, rooted in courts’ hesitancy to use the law as a means of regulating eve-ryday social interactions or to flood dockets with cases that are more appropriately dealt with through work-place mediation or other on-the-ground options.10 Though it is not necessary to demonstrate “tangible psychological injury,” conduct that is “merely offen-sive” will not be enough to demonstrate a hostile work environment. Harris, 510 U.S. 17 at 21. Here, Mr. Small rests the entirety of his case on a series of ac-tions that, as discussed more fully below, he cannot tie to any hostility toward his religious identity, forcing the Court to conclude that his claims cannot survive summary judgment.

First, it is difficult to construe what Mr. Small ex-perienced as harassment based on religion. There were never any comments made to him about his reli-gious beliefs, nor does he present any evidence that the decision to employ Mr. Small as a Dispatcher instead of an Inspector was rooted in animus, aside from the fact that one required shift work and mandatory over-time while the position he preferred did not.11

10 See Oncale v. Sundowner Offshore Servs., 523 U.S. 75,

81 (1998) (noting Title VII is not meant to be expanded into a “general civility code”).

11 Mr. Small provided the following information about religious animus during his deposition:

Q: Do you have any evidence of Mr. Conway’s actions of harassment were because of your religion in emails?

A: Well, when I made the request to receive a first shift position like I had during my entire time with Light, Gas and Water because of my religious obligation I feel that, yes, that was a form of discrimination and harassment.

38a Moreover, his initial placement in the Dispatcher po-sition rather than the Inspector position was a single action resulting from a reassignment program meant to place individuals who can work into appropriate po-sitions. There is no dispute that Mr. Small was quali-fied for the Dispatcher position.

Looking at the harassment claim via the lens of the requested accommodations and disciplinary actions, it is still difficult to find an instance of harassment. While MLGW did initially deny some of Mr. Small’s requests, they later reversed course and allowed him the opportunity to “blanket swap” as necessary. More-over, Mr. Small himself acknowledges that his commu-nity obligations can be performed when he is not on shift on Saturdays. As it stands, Mr. Small has been granted the opportunity to shift swap, no longer works on two of the days on which he is required to worship and is able to fulfill his other religious obligations without issue on Saturdays. He has been disciplined for failure to show up for mandatory shifts, but, as

Q: Did Mr. Conway ever make any negative comments

about you being a Jehovah’s Witness? A: No. Q: Did he ever make any comments that led you to be-

lieve that he held some sort of animus about you being a Jehovah’s Witness?

A: Just the statement that – when I told him that I couldn’t work a shift, he basically said that I would have to. And I told him I couldn’t work the shift because of my reli-gion.

Q: Do you have anything else? A: No. ECF No. 54-1 at 20.

39a previously noted, MLGW is under no obligation to ac-commodate Mr. Small’s requests related to these shifts because doing so would result in an undue burden.

Mr. Small presents no evidence that MLGW’s ac-tions were based on his religion, and, as he himself notes, he did not initially believe what was happening had anything to do with his religion. At one point, Mr. Small indicates that a supervisor told him that “every-body here has religion but the job comes first.”12 ECF No. 54-1 at 19. Similarly, as noted above, Mr. Small’s only evidence that his placement in the Dispatcher po-sition over the Inspector position constituted harass-ment was that the position required shift work where the Inspector position did not. As a matter of law, this is not sufficient evidence for a reasonable juror to con-clude that religiously-based discrimination motived MLGW’s reassignment and accommodation decisions.

Mr. Small’s evidence does not, as a matter of law, establish unwelcome harassment or harassment based on his religion. Thus, Mr. Small fails to provide alle-gations sufficient to demonstrate the elements neces-sary to establish an actionable hostile work environ-ment claim under Title VII. Therefore, Defendant’s

12 See Hafford v. Seidner, 183 F.3d 506, 514 (6th Cir.

1999) (holding an individual whose supervisor accused him of preparing for a “holy war” and mocked the Muslim greet-ing h ad not established sufficient evidence of a hostile work environment because the incidents could be seen as “simple teasing”); see also Burnett v. Tyco Corp., 203 F.3d 980, 985 (6th Cir. 2000) (holding that a “single battery” and “two merely offensive remarks,” including one that was profane and sexual, were insufficient to demonstrate a hostile work environment).

40a Motion for Summary Judgment as to the Title VII hos-tile work environment claim is GRANTED.

III. Retaliation under both the ADA and

Title VII Defendant argues that Plaintiff’s retaliation claims

fail because he cannot demonstrate either an adverse employment action or a causal connection between an adverse action and his participation in a protected ac-tivity. ECF No. 49-1 at 18. Defendant again asserts that, even if Plaintiff were able to establish a prima facie case, his claims fail because MLGW had legiti-mate reasons for taking the actions at issue and Mr. Small cannot provide evidence that those reasons were pre-textual. Id. at 22–24.

Both Title VII and the ADA prohibit retaliation. Ti-tle VII prohibits an employer from discriminating against an individual “because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investi-gation, proceeding, or hearing under this title.” 42 U.S.C. § 2000e-3 (2018). Similarly, the ADA states: “No person shall discriminate against any individual because such individual has opposed any act or prac-tice made unlawful by this Act or because such indi-vidual made a charge, testified, assisted, or partici-pated in any manner in an investigation, proceeding, or hearing under this Act.” 42 U.S.C. § 12203 (2018).

To make out a prima facie case of retaliation, Plain-tiff must show that (1) he engaged in protected activ-ity; (2) Defendant knew he exercised his civil rights; (3) Defendant took adverse employment action against him; and (4) there was a causal connection between

41a Plaintiff’s protected activity and the adverse employ-ment action. See Wasek v. Arrow Energy Servs., 682 F.3d 463, 468–69 (6th Cir. 2012). Retaliation claims should be evaluated separately from discrimination claims in part because a violation of a retaliation pro-vision “can be found whether or not the challenged practice ultimately is found to be unlawful.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000).

It is undisputed that Mr. Small engaged in a pro-tected activity when he brought complaints against MLGW and that MLGW had knowledge of this action, but Mr. Small fails to make a showing of adverse job action and thus also of a causal connection. As a start, Mr. Small was reassigned as a result of his injury. His reassignment did occur only after he reported his in-jury, but that is the natural and necessary result of a permanent work restriction, not an indicator of retali-ation, and Mr. Small had taken no protected action at that time. Therefore, the Court does not assess Mr. Small’s initial assignment to the Dispatcher position as potentially retaliatory.13 Mr. Small’s retaliation

13 Additionally, Mr. Small makes no showing that the

Inspector position was more prestigious, that the Dis-patcher position was a “wretched backwater” alternative or that pay discrepancy occurred. See Mattei v. Mattei, 126 F.3d 794, 808 (6th Cir. 1997). Instead, he notes only that the assignment required shift work where an alternate as-signment, for which it has been established that he was not qualified, did not. As noted, a change in hours can be suffi-cient to demonstrate adverse action under certain circum-stances, specifically, in the case of retaliation claims, when the change clearly put the employee in a worse position and occurred after a protected action. Here, importantly, Mr.

42a claim appears to be based on his continued employ-ment in the Service Dispatcher position despite his re-peated requests for reassignment, as well as the disci-plinary actions taken against him for missing shifts.14

The Court finds no evidence of adverse employment action. A job transfer can constitute an adverse action for the purposes of establishing a Title VII retaliation claim. See White v. Burlington N. & Santa Fe Ry., 364 F.3d 789, 803 (6th Cir. 2004); see also Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010) (noting changes in shifts can constitute adverse action in cer-tain circumstances). A salary difference or difference in prestige can constitute an adverse action. Id. Addi-tionally, even when an employee maintains the same salary, if she is placed in a “wretched backwater,” an adverse action has likely occurred. Mattei, 126 F.3d at 808. Similarly, disciplinary action can serve as evi-dence of retaliation if a plaintiff can demonstrate suf-ficient loss. See Blackburn v. Shelby Cty., 770 F. Supp. 2d 896, 925 (W.D. Tenn. 2011).

None of these situations is present here. There is no proof that MLGW’s denial of Mr. Small’s accommo-dation request to be reassigned was retaliatory. As discussed above, MLGW allowed transfer back into the reassignment pool when performance was unsatisfac-tory; Mr. Small’s was not. Moreover, because Mr.

Small had made no complaint at the time that his shift changed, making it impossible for the change to be retalia-tory.

14 Though a brief discussion is included below, Mr. Small’s claims here have been discussed in detail above in relation to the Title VII and ADA claims, and the Court in-corporates the relevant portions of that analysis here.

43a Small could not perform the essential functions of the Inspector position, MLGW would have had to pay Mr. Small 66 2/3 pay until a job with Mr. Small’s requested shifts became available. Given these undisputed facts, MLGW’s decision not to put Mr. Small in the Inspector position or otherwise reassign him cannot, as a matter of law, be construed as retaliatory.

As discussed above, the disciplinary action, while related to Mr. Small’s religious beliefs, resulted from a failure to work mandatory overtime rather than any improper denial of vacation time requested for a day that Mr. Small did not normally work. Because nei-ther Mr. Small’s placement nor the disciplinary action taken against him is sufficient to establish adverse or discriminatory action, Defendant’s Motion for Sum-mary Judgment as to the retaliation claims is GRANTED.

CONCLUSION Because Mr. Small fails to establish a genuine is-

sue of material fact as to his prima facie case of dis-crimination under Title VII or the ADA and because he cannot sufficiently demonstrate a retaliatory ac-tion, his claims fail as a matter of law. Defendant’s Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED, this 11th day of September 2018. s/ Sheryl H. Lipman

SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

44a APPENDIX C

Hometown Energy 11/20/2017 MLGW Working for You SERVICE DISPATCH- SUPERVISORS OFFICE From: Phelon Grant To: Service Dispatchers & Chiefs Date: April 1st 2015 Subject: SERVICE DISPATCH: Work Rules

RESPONSIBILITY AND ACCOUNTABILITY 1. The supervisor is responsible for the Chief Dis-

patcher and the overall operation of Service Dispatch-ing.

2. Each Chief Dispatcher is responsible for the Dispatchers assigned to his/her shift.

3. Documentation, methods and procedural correc-tions will be the responsibility of the Chief Dispatcher and Area Supervisor. Oral reprimands, dispatcher evaluations and job assignments will be the responsi-bility of the Chief Dispatcher.

4. The assigned Chief of training will be responsi-ble for providing documentation, method and proce-dure corrections, oral reprimands, evaluations and job assignments for Dispatcher trainees and trainers.

5. Any written reprimands will be administered by the supervisor.

6. Each dispatcher is directly accountable to the Chief Dispatcher and Area Supervisor. The Chief Dis-patcher is accountable to the supervisor of Service

45a Dispatching and the Area Supervisor is Accountable to the Manager of Customer Service Field Operations

7. The Chief Dispatcher will inform the supervisor of any situation that deviates from normal operations or could become a potential problem in the area.

8. Each Dispatcher should discuss any problems with the Chief Dispatcher before the supervisor be-comes involved. All Chief Dispatchers arc on duty af-ter reporting to work; however, one Chief handles floor operations and second chief handles office operation. Communications between the two is essential for over-all smooth operation. PUNCTUALITY

1. Each employee in the Service Dispatching area is expected to be at work and on time.

The clocks on the chiefs computer will be the official time clock for determining lateness.

Example: 7AM-330PM Dispatcher must be within his/her cubicle, radio and PC shall be on and telephone shall be available to receive phone calls at 7AM.

Example: 330PM-12AM Dispatcher must be within his/her cubicle, radio and PC shall be on and telephone shall be available to receive phone calls at 330PM.

2. Tardiness Report, Form 74055 will be filled out by the Chief whenever an employee is late. If the em-ployee is late due to unforeseen circumstances ( traffic, car trouble etc) the tardy may possibly be excused but Form 74055 will still be filled out for record keeping. Any tardiness excused will be at the discretion of the Chief on Duty or the Supervisor

46a 3. The employee is responsible for notifying the

Chief Dispatcher if he/she is going to be late at the ear-liest possible time.

4. Vacation time will not be granted to avoid being late

5. Disciplinary action will began after the third oc-currence of any employee being late within a 1 year period(rolling calendar). Any time you are over 15 minutes late, it will be charged to function 904 (unpaid absence). SICK LEAVE CALL IN/RETURNING TO WORK

1. Sick leave is to be used exclusively for absences due to the employee's own illness or accident.

2. Proof of illness shall be required after four con-secutive days off, or when evidence of abuse exists. Proof of illness shall also be required when a dis-patcher or chief requests vacation, and calls in sick when vacation is denied.

3. Any doctor's slip whether required or given as a courtesy must state employee was unable to work on the day(s) of the absence.

4. Illness reports are kept on an open window, therefore, the sick leave accumulates from first sick and does not begin over at the end of the fiscal year.

5. Sick leave usage will be evaluated on perfor-mance appraisals and could affect the final perfor-mance grade.

6. Service dispatching personnel who are ill shall notify the Chief or Supervisor as early as possible be-fore assigned shift starts. Dispatchers should state when calling in if they're taking sick or FMLA.

47a Anyone off ill must notify the Chief or Supervisor

of their return at the designated times listed below: a. Dispatcher working 7AM-330PM must call

before 9PM preceding the shift. b. Dispatcher working 330PM-12AM must call

before 9AM preceding the shift Sick leave will be monitored by Chief's and the Su-

pervisor. PERSONAL USE OF TELEPHONES

1. Employee's cell phones and pagers shall be on vibrate during working hours. Cell phones should not be used at the desk for social media, text messaging, pictures etc. If an employee must accept an urgent phone call while in the workplace, the employee will request through the Chief to be relieved from their po-sition to accept this urgent/emergency phone call. The employee shall leave the work area to complete this phone call. Personal telephone calls shall be limited to five minutes. This is a privilege that will not be abused without consequences. The Chief will monitor tele-phone times to determine whether the call is work re-lated and document. Working long hours can create a need for you to communicate with others during work-ing hours; however, extended time on the phone must be approved by the Chief. REQUIRED OVERTIME

1. Service Dispatching personnel may be required to work overtime when the employee has the least number of cumulative overtime hours and all other available employees have passed the overtime.

2. When the Chief deems it necessary to require additional personnel to handle

48a heavy volumes of work and during crisis modes de-clared by Systems Operations.

3. If a dispatcher has been required and then states they are sick must provide a doctors notice be-fore returning to work. Any patterns of abuse concern-ing this behavior when required will result in discipli-nary action. Note: See Detailed Overtime Policy.

PROFESSIONALISM WITH CUSTOMERS AND EMPLOYEES

Our work involves assisting and providing help to employees in many areas of MLGW, as well as helping customers. Most of our work is accomplished by oral communication. It is therefore necessary to reflect in our voices a willingness to assist other people. The way we conduct business exemplifies the attitudes we convey to other people.

The list of examples below are some of the ways that I expect each Service Dispatching employee to perform while conducting business with customers in-ternal and external.

1. When answering the telephone, state the area and your name. (Service Dispatching, this is Pat). On weekends the dispatcher will follow the emergency phone line script.

2. Show a willingness to help. Abrupt, annoyed and testy communications will be documented for dis-ciplinary action.

3. The dispatcher should express a calm, unhur-ried and pleasant manner when talking to another person, whether by radio, telephone or in person.

49a 4. If you are unable to do what is requested be-

cause of MLGW policies, procedures or workload, ex-plain in a empathetic way why you are unable to help.

5. Never allow yourself to “debate,” argue or get into conflicts with another person. If you see that is about to happen, place the caller on hold or if on the radio, give standby code and consult with the Chief Dispatcher. The dispatcher WILL NOT attempt to pass irate or difficult customers to the Chief to avoid performing their duties.

6. Everyone will treat each other with dignity and respect. No one shall promote discord or conflict in the office.

7. Rude behavior, gestures or being insubordinate towards the Chiefs or Supervisor will ABSOLUTELY not be tolerated and will be cause for disciplinary ac-tion. DISCIPLINARY ACTIONS

1. It is the policy of MLGW to initiate appropriate disciplinary action whenever an employee violates area or company rules, regulations and policies. These rules and regulations, which prescribe acceptable con-duct for employees, are necessary for the effective and efficient operation of the Division and the protection of the rights and safety of all employees. When a viola-tion occurs, supervision will consider the seriousness of the offense committed and the past record of the of-fending employee in determining an appropriate ac-tion.

2. Disciplinary action should always be designed to fit the offense.

50a 3. Progressive discipline will allow the employee

every opportunity to correct himself/herself for the fol-lowing reasons:

a. It is administered in progressive steps. b. The employee is told what corrective measures

are necessary on his/her part in order to prevent future discipline or possible discharge.

These five (5) progressive steps will be followed un-der normal circumstances:

a. Oral reprimand. b. Written reprimand. c. Written reprimand with suspension and warn-

ing of more serious disciplinary action. d. Written reprimand with longer suspension and

warning of more serious disciplinary action, including possible discharge.

e. Discharge. The seriousness of the offense will determine how

many steps are to be followed. If a first offense is seri-ous enough and may lead to more serious disciplinary action, supervision may bypass the oral reprimand and give a written reprimand. Under certain condi-tions, even discharge may be justified for a first offense (see the Discipline and Discharge Article of the Mem-orandum of Understanding). MISCELLANEOUS RESPONSIBILITIES

1. Employees are responsible of ensuring they have properly setup their radio and Advantex for their area of responsibility. Failure to properly select and monitor radio talk groups, Advantex's pending orders, fleet status and e-mail will result in disciplinary

51a action. Area set-up shall be monitored by the Chief and Supervisor.

2. Employees upon taking their position shall log onto High-Path and report all changes in their work-ing status during the day. At the end of their shift the employee shall log off.

3. Dispatchers working the radio jobs are expected to answer telephones. Radios and telephones are tools of work and are to be used in a professional manner. Continuous ringing phones may be an indication that too many personal projects have taken over priority (reading, crossword puzzles, internet, cell phone usage (texting or talking) personal conversations, sleeping).

4. Dispatchers WILL notify the Chief and relief person when they leave for breaks, lunches and/or any other reason.

5. Dispatchers who have been properly relieved are expected not to disrupt the work area and not to talk loudly to dispatchers who are working. No Dis-patcher should be allowed to leave the work area ear-lier than 15 minutes prior to their shift ending, except by permission of the chief.

6. Dispatchers are to stay at their work positions unless assigned elsewhere by the duty Chief or Super-visor.

7. Dispatchers are not to be released until their va-cation or sick leave actually starts. Actual time away from a scheduled shift must be charged to a function number.

8. Rough or boisterous play, hazing, bantering and loud conversations among Service Dispatching person-nel are not permitted.

52a 9. Adult, non-work related conversation among

Service Dispatching personnel when the workload is light is permitted. No profanity is allowed.

10. Dispatchers are responsible for timely adher-ence to their 15 min breaks periods and lunch periods.

11. Complaints received from another department concerning a Dispatcher's unprofessional behavior (rude, argumentative, uncooperative) will be ad-dressed and answered by that Dispatcher in writing.

12. Books and magazines may be read at your posi-tion, as long as they do not take priority over radios and telephones. Newspapers or major personal pro-jects will not be allowed between the hours of 7AM TO 5PM or if workload dictates.

13. The area televisions should remain on news or weather 7a-5p. Dispatchers may occasionally watch other wholesome programs during these hours if the Chief deems the area is being productive during this time, and the workload is not heavy.

14. In order for seniority to apply, vacation must be scheduled before/on January 31st of each year. Re-quest for vacation should be made three days in ad-vance. Vacation requested less than 3 days in advance may be approved if the following guidelines are met: The department is not over the monthly OT budget; someone willingly accepts the overtime and if the al-lotted number of daily vacation slots available has not been met. No one will be required to work for re-quested vacation less than 3 days in advance. No more than two dispatchers may be on vacation and/or bonus day daily during the week and one dispatcher on vaca-tion and/or bonus day daily on the week-end, unless, in emergency situations, approved by a Chief Dis-patcher or Supervisor. Exception: Request of 2 hours

53a or less may be approved for vacation for employees in excess of two (2) during the week and one (1) on the week-ends if the workload allows for this absence. Only one Chief should be off at any given time.

15. Emergency vacation may be approved or de-clined depending on the workforce. Emergency vaca-tion is defined as an unforeseen circumstance that calls for immediate attention such as court dates, acci-dents, or death of an immediate family member etc. Any other type of situation that is considered and emergency by a dispatcher will be left up to the discre-tion of the Supervisor or the Chief on Duty. You must notify supervision of the nature of the emergency. Proof of the emergency may be requested. When re-turning to work, Absence/FMLW request form 41144 must be filled out.

16. Swaps between regularly scheduled personnel on different shifts are permissible as long as the Mem-orandum of Understanding is not violated.

Swaps are allowed as a privilege, these are the re-strictions:

a. No blanket swapping is allowed. b. Swaps only granted one (1) week in advance. c. Maximum of two (2) swaps per dispatcher. d. No swaps allowed with a dispatcher scheduled

for leave. (Vacation, bonus day, scheduled extended sick leave)

e. Swaps must be requested via Swap request form.

f. Employees may swap a regular shift for a regu-lar shift, overtime for overtime or off days for off days.

54a g. No overtime swaps allowed that create double-

time. h. All requests shall be signed and dated by both

parties and initiated by the Chief. i. All swaps must be approved by Chief or Super-

visor. WORK ATTIRE

1. There is no formal dress code defined for em-ployees of MI,GW. We should dress in a manner befit-ting the workplace. Business casual should be our at-tire in the workplace. Our clothing should be comfort-able and suitable for the business environment. Some examples of what is not permitted are: Open Back Sun Dresses, mini-skirts/dresses, spandex, sweats and shorts.

55a APPENDIX D

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JASON SMALL,

Plaintiff-Appellant, v.

MEMPHIS LIGHT, GAS AND WATER, Defendant-Appellee.

No. 19-5710 Appeal from the United States District Court or the Western District of Tennessee at Memphis. No. 2:17-

cv-02118—Sheryl H. Lipman, District Judge. Decided and Filed: March 12, 2020

Before: DAUGHTREY, KETHLEDGE, and THAPAR, Circuit Judges.

_________________________________________________

BRIEF OF APPELLANT JASON SMALL _________________________________________________ ON BRIEF: Maureen T. Holland, Yvette Kirk, HOL-LAND & ASSOCIATES, Memphis, Tennessee, for Ap-pellant.

56a * * *

SUMMARY OF THE ARGUMENT Small filed his Complaint against MLGW for dis-

crimination, harassment and retaliation based on his religion in violation of Title VII, and discrimination and retaliation based on his disability in violation of the Americans with Disabilities Act. He filed his Com-plaint because MLGW discriminated against him based on his disability and sincerely held religious be-liefs when, after Small went on disability leave and was placed in the disability reassignment program, MLGW through its HR employee Mr. Conway, bullied Mr. Small with wrongful threats of termination, and forced him into hurriedly accepting a job that was not compa-rable to his previous job of 17 years. Also, the position MLGW forced Small into was not within his general skill set, and MLGW knowingly interfered with Small’s religious obligations. MLGW wrongfully manipulated the job reassignment process when it submitted a sec-ondary and unofficial list of alleged “Inspector Duties”, claiming them to be additional “essential functions of the job.” This second list of functions and the physical demands analysis were not listed in MLGW’s official job posting, were not part of the original information sent to the treating doctor for approval, and were not a list that was used for any other applicant for the In-spector Position. Further, these additional items were only sent to the treating doctor after that same doctor, Dr. Fahey, had approved Small for the Inspector Posi-tion.

Small presented an abundance of evidence that MLGW discriminated against him based on his reli-gion when they knowingly placed him into a job with regular shift changes along with sporadic mandatory

57a overtime that would inevitably interfere with Small’s religious obligations as a member, and Elder of the Je-hovah’s Witness faith. Small has established he per-formed his job as best he could while seeking reasona-ble accommodations so that he could meet his sincerely held religious beliefs and service obligations. Also, Small’s accommodation request(s) would have at most caused MLGW a de minimus burden. As Small was not reasonably accommodated, he filed grievances and continued to make requests, including shift changes and the use of his comp/vacation time. In response, Small was continually harassed by his supervisors for having made such requests.

* * * A. SMALL’S CLAIMS UNDER TITLE VII SHOULD NOT HAVE BEEN DISMISSED.

Title VII prohibits, in relevant part, discrimination “against any individual with respect to his compensa-tion, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” 42 U.S.C.S. § 2000e-2 (2018).

1. Religious Discrimination and Accommodation To establish religious discrimination, an employee

must show that: “(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.” Smith v. Pyro Min. Co., 827 F.2d 1081, 1085 (6th Cir. 1987). Once an employee has established a prima facie case, the burden shifts back to the employer to show that it is not possible to accommodate the employee without undue hardship. Id. An employee must attempt to co-operate with an employer’s proposed accommodation.

58a Id. Because the question of “undue hardship” versus a “de minimis burden” will naturally shift from em-ployer to employer, the Court looks to the specific sit-uation in each case. Id. Accommodations that would interfere with union agreements, shift assignments and seniority policies have been deemed to place an undue hardship on employers. See TWA v. Hardison, 432 U.S. 63, 80 (1977) (Title VII does not require em-ployers to “deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others.”)

Small has established that, as a long time, active member of the Jehovah’s Witness faith and the Collier-ville Congregation of Jehovah’s Witnesses, (1) he holds a sincere religious belief (undisputed) that conflicts with the scheduling requirements of the Service Dis-patch position; (2) he has informed MLGW of this con-flict on numerous occasions, including prior to being placed into the Service Dispatch position; and (3) he was disciplined for failing to comply with the schedul-ing requirements of this position due to his religious obligations. At all points he has been treated differ-ently from similarly situated employees. Conway dis-regarded Small’s request not to be placed in the Service Dispatch Position due to his sincerely held religious be-liefs. (Response to Statement of Facts, Ex. II-Emails, RE# 62-8, Page ID # 443-446). Conway disregarded the statement by Small’s religious organization which supported Small’s request for a reasonable religious accommodation. (Response to Statement of Facts, Ex. II- Emails, RE# 62-8, Page ID # 446).

The district court found that Small’s claim failed because MLGW had demonstrated that it had offered accommodations where possible by allowing a “blanket

59a swap” and that where it had not offered accommoda-tions, it is because accommodations would result in an undue hardship. (See Order, RE # 102, Page ID # 848). The district court’s decision is erroneous on both counts for a number of reasons.

i. MLGW’s “accommodations” were hollow gestures.

First, on the one occasion where MLGW granted Small’s request for reasonable religious accommoda-tion, it was done purposefully too late. MLGW agreed to offer Small an accommodation in the form of a “blan-ket shift swap” only when the requested accommoda-tion was no longer needed. Additionally, these blanket shift swaps were granted months after Small had re-quested them, and after Small’s shift had changed to one without the schedule conflict. (Depo. of Small, RE# 62-18, Page ID # 517-18).

Second, Small notified management of the conflicts that the departmental scheduling in Service Dispatch would cause because of his sincerely held religious be-liefs, and made these conflicts known during the initial six (6) month training period. The policy states that during the 6 month training period “some trainees have discovered that this is not the right job for them. If that is the case, they have the right to discontinue training and be assigned somewhere else.” He was de-nied the provision of this policy. (Grant Depo. Ex. 2, RE# 62-4, Page ID # 422-24). He was also disciplined in the form of a three (3) day suspension for attending his religious services. He informed management of an essential religious observance months in advance and his leave for that date was approved in writing. (Ab-sence Request, RE# 62-15, Page ID # 483). He was still scheduled to work on the date of his observance and

60a was suspended without pay for three (3) days and lost the benefit of bidding on other available positions be-cause of the discipline. Despite MLGW’s assertion that Small missed “mandatory overtime” and despite the suspension, the overtime was not “mandatory.” Other similarly-situated employees, who were not seeking religious accommodations and/or had not filed previous grievances, were approved vacation and thus allowed to take their vacation. By allowing other em-ployees to have vacation it was apparent that the hol-iday overtime was not actually “mandatory.” (Re-sponse to Statement of Facts, Exhibit PP, RE#62-16, Page ID # 484).

* * * Dated: October 21, 2019

Respectfully submitted, /s/ MAUREEN T. HOLLAND

Maureen T. Holland Yvette Kirk Holland & Associates 1429 Madison Avenue Memphis, TN 38104