11/2/07 3:01 PM
6th Circuit: Religious Discrimination Claim Dismissed
By Maria Greco Danaher
6th U.S. Circuit Court of Appeals
affirmed the dismissal of an employee’s religious discrimination claim against the U.S. Postmaster General. One basis of that dismissal was the court’s determination that the employee had not established a
case that the U.S. Postal Service had failed to accommodate his religious beliefs.
Martin Tepper is a full-time letter carrier for the U.S. Postal Service (USPS) in Chagrin Falls, Ohio. Tepper, a Messianic Jew, holds Sabbath each Saturday and observes Jewish holidays. Between 1992 and 2003, Tepper was granted an accommodation allowing him not to work on Saturdays or on other significant Jewish holidays.
The letter carriers in Chagrin Falls are represented by the National Association of Letter Carriers (NALC). The prevailing collective bargaining agreement for that union includes a provision requiring the carriers to work a five-day workweek with every Sunday off, and with the other day off set on a fixed or rotating basis, as determined by the local union branch. The Chagrin Falls local agreement provides for a rotating day-off schedule. That agreement included an exception for Tepper through 2002. Until that time, staffing levels allowed the supervisors to grant Saturdays off to Tepper without disrupting the rotating day-off schedule for the other employees. By 2002, reduced staffing levels created difficulties in scheduling Tepper’s day off, as it required other carriers to work Saturdays more often than the rotating schedule provided and often required other carriers to complete Tepper’s route after completing their own, resulting in increased overtime costs.
In October 2002, union members—without Tepper’s presence at the meeting—unanimously voted to recommend termination of Tepper’s religious accommodation. The new local agreement, which did not include the accommodation, became effective on Jan. 11, 2003. Management agreed to allow Tepper to use annual leave and unpaid personal time, and to exchange days off with other carriers, in order to take Saturdays off.
Tepper filed a lawsuit claiming religious discrimination. He alleged, in part, that the use of his personal leave time to take Saturdays off reduced his pay and future retirement benefits, and that the USPS had failed to accommodate his religious beliefs.
The lower court dismissed the religious accommodation claim. It held that in order to establish a failure to accommodate, Tepper first had to show that he:
• Held a sincere religious belief that conflicts with an employment requirement.
• Informed his employer of that conflict.
• Was discharged or disciplined for failing to comply with the conflicting requirement.
The USPS did not dispute that the first two prongs had been met. The court determined, however, that Tepper was unable to demonstrate that he had been discharged or disciplined.
Although Tepper argued that he had been forced to take days off from work without pay to avoid Saturday work, and that these days off decreased his annual pay and eventual pension, the court specifically held that “more than a loss of pay is required to demonstrate discipline or discharge.” Because that reduction in pay had no direct effect on employment opportunities or job status, the court found that Tepper was not “discharged or disciplined” and, therefore, that he did not set forth an essential element of his prima-facie case.
Tepper v. Potter
, 6th Cir., No. 06-4182 (Oct. 15, 2007).
Professional Pointer: Employers should not use this case as a rationale for terminating existing religious accommodations without further analysis. While the 7th Circuit found that Tepper’s loss of pay did not constitute a discharge or discipline, the court also mentioned multiple times in the opinion the fact that Tepper’s accommodation created an undue hardship for the USPS, which further supported the dismissal of Tepper’s claim. In addition, the fact that there was a collective bargaining agreement with which Tepper’s accommodation was inconsistent may also have played a role in the court’s view of the situation. Before withdrawing an existing accommodation, employers should undertake a full review of the original decision and should fully document ways in which the basis for that decision may currently create an undue hardship for the company.
Maria Greco Danaher is an attorney with the firm of
Dickie, McCamey & Chilcote
Religion in the Workplace Toolkit
Workplace Law Focus Area
Editor’s Note: This article should not be construed as legal advice.